IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PHILLIP DURANCE, No. 83562-9-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION NATIONAL RAILROAD PASSENGER CORPORATION, a/k/a AMTRAK, a Washington, D.C. corporation,
Respondent.
HAZELRIGG, J. — Phillip Durance appeals from an order granting summary
judgment dismissal of his claim for negligence against National Railroad
Passenger Corporation a/k/a Amtrak (Amtrak) under the Federal Employers’
Liability Act (FELA).1 Because Durance fails to raise a genuine issue of material
fact as to the foreseeability of the harm suffered, summary judgment in favor of
Amtrak was proper and, accordingly, we affirm.
1 45 U.S.C. § 51-60. Durance sued under 45 U.S.C. § 51 which provides for causes of action based on negligence liability.
Citations and pinpoint citations are based on the Westlaw online version of the cited material. No. 83562-9-I/2
FACTS
On October 3, 2018, Phillip Durance was working for Amtrak as a baggage
handler at the King Street Station in Seattle. During his shift, Durance entered the
employee restroom which was only accessible via keycard. Just as Durance sat
on the toilet seat, he heard an explosion and felt “the most pain [he’d] ever had in
[his] life.” Durance lifted the toilet seat and saw a red object, which appeared to
him to be a firecracker, fall to the floor. Durance reported the incident to the King
Street Station Agent, who told District Manager Gregory Bannish, who in turn
notified Amtrak Police Detective Steven Travers. Travers interviewed Durance
and took pictures of the stall, toilet, and firecracker, before driving Durance to
Harborview Medical Center (Harborview) for examination and treatment.
At Harborview, Durance was given an ultrasound, a tetanus shot, and pain
medication for his injury. The treating physician stated that Durance suffered a
“superficial burn that should heal on its own.” Once Durance was discharged from
the hospital, Travers drove Durance to his car at a park and ride. During the drive,
Durance and Travers spoke about the incident; according to Durance, Travers said
that he intended to “solve this incident” and noted that “[w]e have several
knuckleheads up here.” Ultimately, neither Amtrak detectives nor officers from the
Seattle Police Department ever discovered the identity of the perpetrator.
On July 9, 2020, Durance sued Amtrak in King County Superior Court under
FELA, specifically 45 U.S.C. § 51, alleging that Amtrak negligently caused his
injuries by failing to provide a safe work environment at King Street Station.
Durance alleged that Amtrak was negligent under both the plain language of FELA
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and the theory of res ipsa loquitur.2 Amtrak moved to exclude Durance’s expert
Dr. Stephen Morrissey and sought dismissal of Durance’s suit on summary
judgment. After a hearing, and consideration of the expert declaration, the trial
court granted Amtrak’s motion for summary judgment and denied the motion to
exclude Morrissey’s declaration as moot. On December 3, 2021, the trial court
denied Durance’s motion for reconsideration. Durance timely appealed.
ANALYSIS
This court reviews summary judgment orders de novo. Saralegui Blanco v.
Gonzalez Sandoval, 197 Wn.2d 553, 557, 485 P.3d 326 (2021).3 On review, “[a]ll
facts and reasonable inferences must be interpreted in the light most favorable to
the nonmoving party.” Gibson v. Costco Wholesale, Inc., 17 Wn. App. 2d 543,
555-556, 488 P.3d 869, review denied, 198 Wn.2d 1021 (2021). Summary
judgment is only appropriate when there is “no genuine issue as to any material
fact, so the moving party is entitled to judgment as a matter of law.” Saralegui
Blanco, 197 Wn.2d at 557.
I. Creation of a Federal Tort under FELA
In 1908, “[c]ognizant of the physical dangers of railroading that resulted in
the death or maiming of thousands of workers every year, Congress crafted a
2 Res ipsa loquitur (Latin for “the thing speaks for itself”) is a doctrine meaning, relevant to
FELA, “that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking.” Jesionowski v. Bos. & Me. R.R., 329 U.S. 452, 457, 67 S. Ct. 401, 91 L. Ed. 416 (1947). 3 Durance’s first assignment of error on appeal asserts that the trial court failed to apply
the proper evidentiary standard under FELA in its consideration of the summary judgment motion. Because we engage in de novo review, we need not analyze this challenge.
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federal remedy that shifted part of the “‘human overhead’” of doing business from
employees to their employers.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542,
114 S. Ct. 2396, 129 L. Ed. 2d 427 (1994) (quoting Tiller v. Atl. Coast Line R.R.
Co., 318 U.S. 54, 59, 63 S. Ct. 444, 87 L. Ed. 610 (1943) (internal quotation marks
omitted). That federal remedy was a tort action under FELA, which provides:
Every common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages to any person suffering injury while he is employed by such carrier . . . 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.
By enacting FELA, “‘Congress took possession of the field of employers’
liability to employees in interstate transportation by rail; and all state laws upon
that subject were superseded.’” Seeberger v. Burlington N. R.R. Co., 138 Wn.2d
815, 819, 982 P.2d 1149, 1151 (1999) (quoting Chi., Milwaukee & St. Paul Ry. Co.
v. Coogan, 271 U.S. 472, 474, 46 S. Ct. 564, 70 L. Ed. 1041 (1926)). 4
Furthermore, questions regarding the “‘kind or amount of evidence required to
establish [liability] is not subject to the control of the several states.’” Id. at 819
(quoting Coogan, 271 U.S. at 474). Beyond the statute itself, the rights and duties
of the parties are controlled by the “principles of common law as interpreted by the
federal courts.” Coogan, 271 U.S. at 474.
4 As FELA is a federal statute, Washington courts look to the decisions from the United
States Supreme Court and federal courts when interpreting and applying the statute. See Seeberger, 138 Wn.2d at 819-23.
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In furtherance of “Congress’ remedial goal[s]” and “FELA’s humanitarian
purposes,” the statute is liberally construed by the courts. Gottshall, 512 U.S. at
542–43. Accordingly, the evidentiary burden for a FELA plaintiff is “‘significantly
lighter’” than it would be for an ordinary negligence action. Seeberger, 138 Wn.2d
at 820 (quoting Williams v. Nat’l R.R. Passenger Corp., 161 F.3d 1059, 1061 (7th
Cir. 1998)). However, FELA is not a workers’ compensation statute; liability is
based on the employers’ negligence, not the employees’ injuries. Ellis v. Union
Pac. R.R. Co., 329 U.S. 649, 653, 67 S. Ct. 598, 91 L. Ed. 572 (1947). Therefore,
“the FELA plaintiff must offer evidence proving the common law elements of
negligence, including duty, breach, foreseeability, and causation.” Seeberger, 138
Wn.2d at 820 (quoting Williams, 161 F.3d at 1062).5
When a FELA claim is based upon an intentional assault by one employee
against another, the plaintiff may recover against the employer under one of two
theories: respondeat superior6 or direct negligence. Taylor v. Burlington N. R.R.
Co., 787 F.2d 1309, 1314 (9th Cir. 1986). Durance argues only that Amtrak is
liable for its direct negligence. Under direct negligence, a railroad is liable if it “fails
to prevent reasonably foreseeable danger to an employee from intentional or
criminal misconduct.” Id. at 1315.
II. Foreseeability under FELA
5In CSX Transportation Inc. v. McBride, the Supreme Court explained that FELA does not
incorporate the common-law standards of proximate causation. 564 U.S. 685, 688, 131 S. Ct. 2630, 180 L. Ed. 2d 637 (2011). Rather, the causation element is satisfied so long as the employee shows that “the railroad’s negligence played any part in bringing about the injury.” Id. 6Respondeat superior (Law Latin “let the superior make answer”) is the “doctrine holding
an employer or principal liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency.” BLACK'S LAW DICTIONARY 1935 (11th ed. 2019).
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As established by the Supreme Court, “the test of a jury case [under FELA]
is simply whether the proofs justify with reason the conclusion that employer
negligence played any part, even the slightest, in producing the injury or death for
which damages are sought.” Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506,
77 S. Ct. 443, 1 L. Ed. 2d 493 (1957). Therefore, to determine whether a FELA
claim will survive summary judgment we apply “a significantly reduced evidentiary
standard,” and only the “slightest evidence” of breach or causation is required to
reach the jury. Seeberger, 138 Wn.2d at 822. The issue of whether a duty exists,
however, is a question of law for the court to determine. Id.
While FELA imposes a duty on railroads to provide a safe workplace for
their employees, the scope of this duty is limited by the reasonable foreseeability
of the harm. Seeberger, 138 Wn.2d at 822-823. The foreseeability of harm is an
“essential ingredient” of negligence under FELA. Gallick v. Baltimore & O. R.R.
Co., 372 U.S. 108, 117, 83 S. Ct. 659, 9 L. Ed. 2d 618 (1963). For example, the
jury in Gallick was provided instructions which explained the railroad’s “‘duties are
measured by what is reasonably foreseeable under like circumstances’—by what
‘in the light of the facts then known, should or could reasonably have been
anticipated.’” Id. at 118. Thus, the employer must have actual or constructive
knowledge of the hazard, and the employee’s harm must be “‘within the ambit of
the hazards covered by the duty imposed upon defendant.’” Seeberger, 138
Wn.2d at 823 (quoting Rikstad v. Holmberg, 76 Wn.2d 265, 269, 456 P.2d 355
(1969)). If the harm suffered by Durance was foreseeable, Amtrak had a duty to
exercise reasonable care to protect against it.
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Durance argues that “Amtrak had at least constructive knowledge of the
pervasive culture of pranking at King Street Station.” Accordingly, he contends,
Amtrak should have known that there was a potential hazard to its employees due
to these “pranks.” In his opposition to Amtrak’s motion for summary judgment,
Durance relied on testimony from multiple Amtrak employees in addition to his
own. Bannish, Amtrak’s district manager, stated in his deposition that new
employees “go through a process that feel[s] uncomfortable because they’re brand
new, but that’s just the nature of coming in and being a new employee and trying
to get to know everybody.” Bannish was unaware of any type of “hazing or
harass[ment]” and had never experienced anything “that would be mean or cause
injury.”
Andrea Kletke Coms explained that her experience at King Street Station
was an “old boys[’] club kind of thing. If you’re a woman, you don’t fit in, and they
make life hard for you. If you’re a man, and you’ve been there with the company
for a long time, you’re good to go.” In response to questioning during her
deposition about her experience with “pranking or practical jokes,” Kletke Coms
eventually agreed that she experienced such conduct at work “every couple
months” between 2015 and October 2018, including a banana peel in her money
bag, staples removed from her staple gun, changing of her computer screen, and
the lowering of her bar stool “all the way down really low.”7
7 At oral argument before this court, Durance characterized the bar stool incident as one
where the stool was loosened to the point that it collapsed when sat upon, emphasizing the possibility of injury related to the fall. Wash. Court of Appeals oral argument, Durance v. Nat’l R.R. Passenger Corp (Amtrak), No. 83181-0-I (Sept. 14, 2022), at 2 min., 30 sec., video recording by TVW, Washington State's Public Affairs Network, https://tvw.org/video/division-1-court-of- appeals-2022091038/. However, Kletke Coms noted only that she had found her stool lowered, and no witnesses provided information about an incident like that described at argument.
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An Amtrak ticket agent stated that he only knew of one other prank that
happened at work, apart from the incident with Durance: pens being taken from
Kletke Coms. Another Amtrak ticket agent purportedly told Travers that he “works
with a bunch of children” and identified a particular coworker as one who “plays
games” when he was interviewed by Amtrak detectives. A baggage claim worker,
identified by his colleague as the employee who “plays games,” explained that
Amtrak employees, himself included, would engage in practical jokes such as
unplugging keyboards, putting tape on money drawers, and partially tearing
tickets. He further noted that on one occasion, employees bounced a racquetball
behind a ticket counter until a supervisor told them to stop. Additionally, the other
Amtrak detective working the case with Travers stated in his deposition that one
of the Amtrak employees told him that some of their coworkers had “played football
or something” in the back of King Street Station.
Still another Amtrak employee, Dustin Edwards, testified that on September
27, 2018, he heard a noise that “sounded like a loud firecracker going off” on the
south side of King Street Station, followed by “some loud ‘howling’ from what
sounded like kids.” By the time Edwards got up to look out the break-room window,
he could “only see the backs of hooded individuals running along the platform on
track 4” and specifically noted that he had “no idea of age, sex or identity” of the
people he observed through the window. The incident appeared to have occurred
on the Sounder platform which is two tracks across from the Amtrak platform and
is not Amtrak property. As Edwards did not report the incident, Amtrak did not
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conduct an investigation.8 Based on the vague information later provided about
this incident, even if Edwards had immediately reported it to Amtrak, it is unclear
what he could have conveyed to put the railroad on notice of a risk of harm to their
employees.
Viewing the evidence in the light most favorable to Durance, these
depositions show that Amtrak likely had constructive knowledge that its employees
engaged in unprofessional behavior while on the job. However, contrary to the
assertion of defense expert Morrissey, constructive knowledge of such conduct
does not amount to constructive knowledge that there was potential danger to
Amtrak employees from intentional or criminal misconduct. In his opening brief,
Durance cites to two FELA cases to support his argument that Amtrak had
constructive knowledge of what Morrissey characterized as a “culture of pranking”
at King Street Station, such that it would be liable for his injuries. However, both
cases are distinguishable.
In Lancaster v. Norfolk & Western Railway Co., the plaintiff was repeatedly
assaulted and harassed by multiple supervisors, therefore, the court held that
railroad management should have “gotten wind of it and done something to stop
it.” 773 F.2d 807, 820 (7th Cir. 1985). Durance’s declaration, however, does not
8 During oral argument before this court, Durance averred that if Edwards heard the noise,
others must have as well, such that Amtrak had constructive knowledge of risk of physical harm to its employees. This requires far too much speculation to satisfy a summary judgment standard. “We consider all facts and reasonable inferences in the light most favorable to the nonmoving party, but the nonmoving party may not rely on speculation.” Specialty Asphalt & Constr., LLC v. Lincoln County, 191 Wn.2d 182, 191, 421 P.3d 925 (2018). Durance carries the burden of proof to demonstrate a genuine issue of material fact, even if only by slight evidence. However, he fails to provide any testimony that anyone other than Edwards actually noticed this incident, or how a noise originating from an adjacent property would have put Amtrak on notice of this broad category of risk. Mere speculation does not create a genuine issue of material fact sufficient to survive summary judgment.
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suggest that he was ever subject to harassment or assault on the job until this
incident. In Bryant v. CSX Transportation Inc., the plaintiff was injured by a cherry
bomb that was thrown in the railroad yard and employees testified that similar
explosions of torpedoes and fireworks in the yard were “common.” 577 So. 2d
613, 616 (Fla. Dist. Ct. App. 1991). There is no such evidence here.
Besides the isolated and unreported incident described by Edwards, which
neither occurred on Amtrak property nor involved Amtrak employees (or at least
there is no evidence in the record to suggest the participants worked for Amtrak),
there was no evidence presented of any history of pranks that would have created
a workplace hazard. Further, Edwards only noted that he heard something that
“sounded like a loud firecracker.” While Durance tries to wedge this fact into the
Bryant framework, unlike that case, there is no evidence in the record that
demonstrates that the noise Edwards heard was actually caused by an explosion
of any kind. While Durance’s expert presented opinions with regard to Amtrak’s
constructive knowledge, a side-by-side review of his report and the various Amtrak
employee depositions on which he relied establishes that Morrissey’s conclusions
were based on mischaracterization of the evidence presented in those depositions.
At summary judgment, the nonmoving party may not rely on mere conclusory
statements unsupported by evidence. Seven Gables Corp. v. MGM/UA Ent. Co.,
106 Wn.2d 1, 13, 721 P.2d 1 (1986).
Durance further attempts to broaden the test of foreseeability under FELA
by relying on Mullahon v. Union Pacific Railroad to argue that his “‘precise’” injury
need not have been foreseeable so long as it “‘might reasonably have [been]
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foreseen that an injury might occur.’” 64 F.3d 1358, 1364 (9th Cir. 1995) (quoting
Green v. River Terminal Ry., 763 F.2d 805, 808 (6th Cir. 1985) (internal quotation
marks omitted). Although this rule statement is accurate, it does not support a
finding of foreseeability here. In Mullahon, the plaintiff successfully raised an issue
of material fact regarding the railroad’s direct negligence as a contributing cause
in the death of an employee. Id. at 1362. In that case, a railroad employee was
murdered on the job by a coworker, and the decedent’s estate brought a claim
against the railroad under FELA. Id. at 1360. To establish the reasonable
foreseeability of harm, the plaintiff provided evidence that another employee knew
several critical facts: 1) the shooter had brought an assault rifle to the work site, 2)
the shooter had been acting strangely and fighting coworkers, 3) the shooter told
him the day before that something bad was going to happen, and 4) the shooter
made provisions for distributions of his assets and the care of his children. Id. at
1364. Therefore, the court explained that whether the “[r]ailroad employees
suspected suicide or homicide is not controlling,” it was “sufficient that a shooting
with an assault rifle was foreseeable.” Id. Unlike Mullahon’s estate, which
provided evidence showing the foreseeability of a specific employee engaging in
a shooting on the job, Durance only offers evidence showing that unprofessional,
and arguably immature, behavior by employees at King Street Station was
reasonably foreseeable.
Durance also offers Burns v. Penn Central Co., 519 F.2d 512, 513-14 (2nd
Cir. 1975), and Baltimore & Ohio Railroad Co. v. Taylor, 589 N.E.2d 267, 270 (Ind.
Ct. App. 1992), to support his argument that his precise injury need not be
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foreseeable under FELA. Unlike Durance, however, the plaintiffs in both Burns
and Baltimore presented evidence of actual dangerous conditions, known to the
rail companies, which created a reasonable expectation of harm. For example, in
Burns, there had been eight recent incidents where individuals had thrown stones
at trains in a certain neighborhood, but the railroad failed to warn the employee
before he was shot and killed while on board a train passing through that
neighborhood. 519 F.2d at 513. Similarly, in Baltimore, railroad companies in the
United States and Canada had recently reported 757 shooting incidents in one
year, but the railroad failed to warn the employee before he was shot and killed
while aboard the train. 589 N.E.2d at 267-74. In both cases, the railroad
companies were aware of the risk of harm from projectiles on certain routes and
failed to properly warn employees.
Although the standard under FELA is only slight evidence, the record here
supports the trial court’s conclusion that the harm suffered by Durance was not
reasonably foreseeable. Acts such as unplugging keyboards, taping money jars,
emptying staplers, changing computer screens, and altering office chairs do not
create a reasonably foreseeable danger of the type of harm Durance suffered as
the result of an explosive device. While Durance also provided testimony that
employees had engaged in conduct perhaps inappropriate for a workplace, such
as playing football and passing a racquetball, these are consensual activities which
are distinct from carrying out pranks against unsuspecting coworkers. Although
such behavior may be unsuitable for a place of business, there is no reasonable
connection between these activities and the intentional assault that Durance
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suffered in the bathroom stall. Because the harm Durance suffered was beyond
the scope of any duty held by Amtrak, and therefore not reasonably foreseeable,
the court did not err by granting Amtrak’s motion for summary judgment.
Affirmed.
WE CONCUR:
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