Randy ARMSTRONG, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Corporation, Defendant-Appellee

139 F.3d 1277, 98 Cal. Daily Op. Serv. 2185, 98 Daily Journal DAR 3103, 1998 U.S. App. LEXIS 5871, 1998 WL 133848
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 26, 1998
Docket96-35769
StatusPublished
Cited by10 cases

This text of 139 F.3d 1277 (Randy ARMSTRONG, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Corporation, Defendant-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Randy ARMSTRONG, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Corporation, Defendant-Appellee, 139 F.3d 1277, 98 Cal. Daily Op. Serv. 2185, 98 Daily Journal DAR 3103, 1998 U.S. App. LEXIS 5871, 1998 WL 133848 (9th Cir. 1998).

Opinion

REAVLEY, Circuit Judge:

Appellant Randy Armstrong sued his employer, Appellee Burlington Northern Railroad Company (Burlington), under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60, for injuries he sustained when he was assaulted by a coworker. The district court granted summary judgment in favor of Burlington. Because we conclude that Armstrong presented sufficient evidence to avoid summary judgment, we reverse.

BACKGROUND

In 1995 Armstrong was employed by Burlington as a track worker on a wood tie gang near Pasco, Washington. At that location Burlington provided motel accommodations at the Vineyard Inn. Burlington paid for these accommodations; employees wishing to stay elsewhere had to pay for their own accommodations.

According to Armstrong, he loaned twenty dollars to Quentin Smith, another member of the work crew. On or about June 1, Smith told Armstrong after work that he would not return the money. Later that evening Smith went to Armstrong’s room at the Vineyard Inn, announced that he did not have to pay back the money, and assaulted Armstrong. Armstrong suffered a broken nose, black eyes, and other injuries. Smith threatened to shoot Armstrong if he told anyone about the incident.

Another track worker, Melvin Brown, stated by affidavit that Smith assaulted him in April of 1995. Smith verbally taunted Brown and then struck him with a spike maul handle. Brown took away the handle and struck back. Smith then grabbed a large nut and bolt. Brown ran away and reported the incident to a supervisor, who told Smith and Brown to settle their differences. Smith then told Brown that he was selling drugs, using cocaine himself, and supplying most of the other gang workers. Smith said “he had killed or shot some guy back in Arkansas.” Smith pulled a gun out of his pants and swung it toward Brown. Brown recalled telling at least one and perhaps two supervisors about the gun. Brown was also sure he told one supervisor, within a few days of the assault, that Smith had told him he was using drugs and selling them to the gang. Brown left the gang on May 21, before the arrival of Armstrong.

Another track worker, Curt Shockey, stated by affidavit that he saw the incident between Smith and Brown. Smith told Brown, “I’ll get my gun and shoot you.” Later that day Shockey told a supervisor about Smith’s threat to use the gun.

Burlington’s operating procedures and safety regulations prohibit employees on duty from possessing or using controlled substances, engaging in altercations, and possessing firearms, and require employees to report violations of the rules to a supervisor.

DISCUSSION

We review de novo a district court’s grant of summary judgment. 20th Century Ins. Co. v. Liberty Mut. Ins. Co., 965 F.2d 747, 749 (9th Cir.1992). “Under Rule 56(c), summary judgment is proper when the pleadings and discovery, read in the light most favorable to the nonmoving party, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id. at 750.

A Negligence

“[Although railroad companies do not insure against accidents and the plaintiff in FELA cases still bears the burden of proving negligence, courts have held that only ‘slight’ or ‘minimal’ evidence is needed to raise a *1279 jury question of negligence under FELA.” Mendoza v. Southern Pac. Transp. Co., 733 F.2d 631, 632 (9th Cir.1984) (internal citations omitted). Liability may be found where “employer negligence played any part, even the slightest, in producing the injury. ..Oglesby v. Southern Pac. Transp. Co., 6 F.3d 603, 607 (9th Cir.1993) (quoting Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957)).

In Mullahon v. Union Pac. R.R., 64 F.3d 1358 (9th Cir.1995), we held that the district court erred in granting summary judgment in favor of a railroad sued by the estate of an employee who was murdered by another employee. We held that a fact issue had been raised on the claim of direct negligence (as opposed to respondeat superior) liability, in light of evidence that a third employee had notice of the danger of the attack and was negligent in failing to warn his supervisor of the danger. Id. at 1360, 1362. “Under the theory of direct negligence, an employer is hable if it fails to prevent reasonably foreseeable danger to an employee from intentional or criminal misconduct.” Id. at 1362 (quoting Taylor v. Burlington Northern R.R., 787 F.2d 1309, 1314-15 (9th Cir.1986)). Noting that the FELA imposes liability on the employer for the negligence of its employees, regardless of rank, we held that summary judgment was improperly granted. Id. at 1362.

Mullahon, therefore, holds that a railroad can be held hable for negligence under the FELA in circumstances where one employee commits an intentional tort against another and responsibility for allowing the preexisting danger can be attributed to the employer. The district court correctly noted that certain facts distinguish Mullahon and the pending case, but in our view none of these factual distinctions are dispositive. In Mullahon there was evidence that the perpetrator had previous disputes with the victims before the murders. Mullahon, 64 F.3d at 1360. In the pending case Armstrong and Smith had an amicable relationship before the assault. The district court noted that “Smith did not have a history of violent or irrational behavior towards plaintiff,” and concluded that Armstrong had failed to show that harm to him was reasonably foreseeable. However, we emphasized in Mullahon that the plaintiff need not always prove that injury to himself, as opposed to some other employee, was foreseeable.

“The test of foreseeability does not require that the negligent person should have been able to foresee the injury in the precise form in which it in fact occurred. Rather it is sufficient if the negligent person might reasonably have foreseen that an injury might occur.” ... It is sufficient that a shooting with an assault rifle was foreseeable, not that the specific victim of the shooting was foreseeable.

Id. at 1364 (quoting Green v. River Terminal Ry., 763 F.2d 805

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139 F.3d 1277, 98 Cal. Daily Op. Serv. 2185, 98 Daily Journal DAR 3103, 1998 U.S. App. LEXIS 5871, 1998 WL 133848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/randy-armstrong-plaintiff-appellant-v-burlington-northern-railroad-ca9-1998.