BILLY RAY NOBLES and CAROLYN NOBLES, Plaintiffs v. WAYNE E.
TALLEY, Defendant, and CSX TRANSPORTATION, INC., Defendant and
Third Party-Plaintiff, v. D & T LIMOUSINE SERVICE, INC., Third
Party-Defendant
No. COA99-631
(Filed 18 July 2000)
1.
Employer and Employee--FELA--automobile accident--provision of seatbelt
The trial court properly granted summary judgment for defendant CSX in an action
arising from an automobile accident where the claims against CSX, an interstate railroad carrier,
were brought pursuant to the Federal Employers’ Liability Act (FELA); plaintiff contended that
CSX failed to comply with the appropriate sections of the Code of Federal Regulations
pertaining to seatbelts and was subject to strict liability; plaintiff presented only his statement
that he had locked the seat belt closed and that it “obviously” came lose without making an offer
of proof that it failed; his statement did not establish why the belt failed or how it was defective;
and, assuming that it failed, plaintiff presented no evidence that the belt did not meet standards
enunciated in the Code of Federal Regulations.
2.
Employer and Employee--FELA--automobile accident--speed and lookout
The trial court erred by granting summary judgment for defendant CSX, an interstate
railroad carrier, on the issue of whether it violated the Federal Employers’ Liability Act (FELA)
by providing a negligent driver where there was an issue of fact as to speed and proper lookout.
Appeal by plaintiffs from order entered 13 January 1999 by
Judge Knox V. Jenkins, Jr., in Johnston County Superior Court.
Heard in the Court of Appeals 13 March 2000.
Lucas Bryant & Denning, by Robert W. Bryant, Jr., Burge &
Wettermark, P.C., by Frank O. Burge, Jr., and Edward L.
Bleynat, Jr., for plaintiff-appellants.
Bode, Call & Stroupe, L.L.P., by Odes L. Stroupe, Jr., and
James N. Jorgensen, for defendant-appellee CSX Transportation,
Inc.
EDMUNDS, Judge.
Plaintiffs Billy Ray and Carolyn Nobles appeal the trial
court’s grant of defendant CSX Transportation, Inc.’s (CSX) motion
for on all of plaintiffs’ negligence claims.
We affirm in part and
reverse in part.
Plaintiff
Billy
Ray
Nobles
(Nobles)
was
an
employee
of
defendant CSX, an interstate railroad carrier.
On 10 June 1994,
Nobles was part of a crew being driven in a van owned and operated
by third-party defendant D&T Limousine Service, Inc. (D&T), which
was under contract with CSX.
The van was being driven by James
Voliva east on Interstate 40 from Rocky Mount to Wilmington.
At
the
on
same
time,
Wayne
Talley
(Talley)
was
traveling
Interstate 40 in a pick-up truck towing another car.
west
Talley lost
control of his truck, skidded across the median separating the
east- and westbound lanes of the interstate, and hit the guardrail
protecting the eastbound lanes of the highway.
The eastbound CSX
van then collided with the vehicle that Talley was towing. Nobles,
who had been lying down on the rear seat of the van, was injured in
the accident.
Nobles alleged that he was wearing his seat belt at the time
of the accident and that it came undone.
The investigating state
trooper recorded in his accident report that the accident occurred
in
daylight
hours
while
straight, flat, and wet.
rain
was
falling,
and
the
road
was
In an affidavit, the investigating
trooper stated that, based upon the wet roads and the heavy load
that
Talley
was
towing,
exceeding a safe speed.
he
issued
a
citation
to
Talley
for
In his affidavit and accident report, the
investigating trooper also noted that he “observed no evidence of
seatbelt failure, only of a failure to wear a seatbelt.”
Toni King (King), who was traveling west on Interstate 40, saw
Talley lose control of his truck and witnessed the collision
between the CSX van and the vehicle Talley was towing.
In an
affidavit, she stated that the “accident happened very quickly and
the driver of the van could not have had a chance to react or avoid
the accident.”
However, Sean Mathew (Mathew), a passenger in
Talley’s truck, stated in an affidavit:
After Mr. Talley’s truck hit the guardrail and
came to a stop, I looked around in the cab of
the truck to find a cigarette I had dropped.
I then opened the truck door and put one foot
out on the ground to get out of the truck when
a white van ran into the car Mr. Talley was
towing.
He estimated “that fifteen to twenty-five seconds passed between
the time Wayne Talley’s truck began to swerve and the time the van
T-boned the car Mr. Talley was towing” and “six to nine seconds
passed between the time Mr. Talley’s truck hit the guardrail and
the time the van collided with the car Mr. Talley was towing.”
On
pursuant
27
to
March
1996,
the
Federal
Nobles
filed
Employers’
a
complaint
Liability
against
Act
(FELA),
CSX
45
U.S.C.A. §§ 51-60 (West 1986), and against Talley for common law
negligence.
On 25 April 1996, Talley filed an answer denying
negligence.
On 6 June 1996, CSX filed an answer denying all
negligence
and
FELA
claims
contributorily negligent.
and
asserting
that
was
CSX also filed a cross-claim against
Talley and a third-party complaint against D&T.
denied negligence.
Talley
D&T’s answer
On 29 October 1998, CSX filed a motion for
summary judgment, and on 13 January 1999, the trial court granted
the
motion
and
Plaintiffs appeal.
dismissed
plaintiffs’
case
with
prejudice.
Although Carolyn Nobles, Nobles’ wife, alleged
loss of consortium against Talley, because the issues on appeal
apply only to Mr. Nobles’ claim against CSX, we hereafter refer to
a singular “plaintiff.”
Plaintiff’s pertinent claims against CSX were brought pursuant
to FELA.
Plaintiff alleged that CSX violated its duty of care
under that act by failing to provide him with a safe place to work
in that the van driver was negligent and that the van seatbelts
were defective.
See 45 U.S.C.A. §§ 51-60.
FELA applies when an
injury occurs to “[a]ny employee of a carrier, any part of whose
duties as such employee shall be the furtherance of interstate or
foreign commerce.”
work
place
is
45 U.S.C.A. § 51.
nondelegable
.
.
“The duty to provide a safe
.
.”
McKeithan
v.
CSX
Transportation, Inc., 113 N.C. App. 818, 821, 440 S.E.2d 312, 314
(1994) (citing Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 10
L. Ed. 2d 709 (1963)).
CSX is liable under FELA for the negligence
of those with whom it contracts to provide operational activities
for CSX.
See Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 2
L. Ed. 2d 799 (1958).
[1] Summary judgment is appropriate where there is no genuine
issue of material fact and where the movant is entitled to judgment
as a matter of law.
See Kessing v. Mortgage Corp., 278 N.C. 523,
180 S.E.2d 823 (1971).
We review the record in the light most
favorable to the nonmovant.
218 S.E.2d 379 (1975).
See Caldwell v. Deese, 288 N.C. 375,
“Even though summary judgment is seldom
appropriate in a negligence case, summary judgment may be granted
in a negligence action where there are no genuine issues of
material fact and the plaintiff fails to show one of the elements
of negligence.”
Lavelle v. Schultz, 120 N.C. App. 857, 859, 463
S.E.2d 567, 569 (1995) (citations omitted).
The elements of negligence are a duty owed by the defendant to
the plaintiff and nonperformance of that duty proximately causing
the plaintiff’s injury.
460 S.E.2d 133 (1995).
a federal question.”
See Camalier v. Jeffries, 340 N.C. 699,
“What constitutes negligence under FELA is
Southern Railway Co. v. ADM Milling Co., 58
N.C. App. 667, 670, 294 S.E.2d 750, 753 (1982) (citations omitted).
The United States Supreme Court has said that negligence is “the
lack of due care under the circumstances; or the failure to do what
a reasonable and prudent man would ordinarily have done under the
circumstances of the situation; or doing what such a person under
the
existing
circumstances
would
not
have
done.”
Tiller
v.
Atlantic Coast Line R. Co., 318 U.S. 54, 67, 87 L. Ed. 610, 617
(1943).
“Under
construction;
federal
recovery
law,
should
FELA
be
is
allowed
accorded
if
the
a
liberal
employing
railroad’s negligence played any part, even the slightest, in
causing the employee’s injury.”
McKeithan, 113 N.C. App. at 821,
440 S.E.2d at 314 (citations omitted).
“As the Supreme Court made
clear in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-55, 106
S. Ct. 2505, 2512-13, 91 L. Ed. 2d 202 (1986), this evidentiary
standard must inform our review on summary judgment.”
Lisek v.
Norfolk and Western Ry. Co., 30 F.3d 823, 832 (7th Cir. 1994)
(citation omitted).
In his complaint, plaintiff alleged, “Defendant CSX failed to
provide [p]laintiff . . . with a safe place to work by providing
him with a negligent driver and defective seatbelts, in violation
of its duties under the Federal Employers’ Liability Act, 45 U.S.C.
§ 51.” We first consider plaintiff’s seatbelt claim. CSX’s motion
for summary judgment required plaintiff to produce a forecast of
evidence to support this claim.
See Cockerham v. Ward and Astrup
Co. v. West Co., 44 N.C. App. 615, 262 S.E.2d 651 (1980).
When
asked by CSX through interrogatory for plaintiff’s “entire basis”
for alleging that the van’s seatbelt was defective, plaintiff
responded, “I locked the seatbelt and it obviously came loose in
the collision.”
When CSX further asked plaintiff to “identify by
number and subject matter all regulations, including all provisions
and requirements, which you claim defendant CSX violated” as to the
allegedly defective seatbelt, plaintiff answered:
Title 49, Code of Federal Regulations, Section
571.208 through 571.210. The subject matter
is self-explanatory and the plaintiff claims
that the defendant CSX caused the plaintiff to
be hauled in a vehicle which did not comply
with the provisions of Title 49 CFR, Section
571.208, .209 and .210 with regard to
seatbelts, their application, and the fact
that the railroad did not comply with those
requirements
and
standards
for
seatbelt
buckling and unbuckling and seatbelt anchoring
securely. In addition, plaintiff claims that
the defendant violated Title 45 U.S.C. Section
51, et. seq. by placing the plaintiff in a
vehicle which was not reasonably safe under
the circumstances and did not provide him a
safe place to work as he rode in the said van
up to the point of the collision.
Plaintiff made no additional allegations or offers of proof to
establish that any seat belt requirements were violated.
Plaintiff
argues
that
CSX
failed
to
comply
with
the
appropriate sections of the Code of Federal Regulations (49 C.F.R.
§§ 571.208-.210 (1999), which, as plaintiff correctly noted above,
pertain to seatbelts) and that this failure subjects CSX to strict
liability without a need for a showing of negligence.
However,
plaintiff has not made an offer of proof that the belt failed, but
has only presented plaintiff’s statement that because he had locked
the belt earlier, it “obviously” came loose.
This conclusory
statement fails to establish why the belt failed or how it was
defective.
See Cockerham, 44 N.C. App. 615, 262 S.E.2d 651.
Moreover, even assuming that the van’s seat belt failed in the
collision, plaintiff has presented no evidence that the belt did
not
meet
the
standards
enunciated
in
the
Code
of
Federal
Regulations; such a failure would not be ipso facto proof of
noncompliance with the regulations.
Consequently, plaintiff has
not met his burden of forecasting sufficient evidence to support
his claim that CSX did not fulfill its duty under FELA to provide
a safe van.
The trial court properly granted summary judgment as
to this issue.
[2]
Plaintiff
additionally
alleged
that
CSX
provided
a
negligent driver who, at the time of the accident, was driving too
fast for conditions and who failed to maintain a proper lookout.
“The burden of establishing liability for negligence thus is
considerably less imposing under the FELA than under the common law
of North Carolina.”
S.E.2d at 753.
Southern Railway, 58 N.C. App. at 670, 294
Upon a careful review of the record, we believe
there are material issues of fact to be decided by a jury in
determining whether the driver of the van was negligent.
The issues of speed and proper lookout may be interrelated.
“[W]hether [the defendant] was negligent in respect of speed
depended largely . . . on whether in the exercise of due care she
could and should have seen [the plaintiff] in a perilous position
and under these circumstances failed to decrease speed.”
Cassetta
v. Compton, 256 N.C. 71, 76, 123 S.E.2d 222, 226 (1961).
passenger,
Mathew,
estimated
that
twenty-five
Talley’s
seconds
passed
between the moment Talley lost control of his vehicle and the
subsequent impact of the CSX van, and that as many as nine seconds
elapsed after Talley’s truck hit the guardrail before the van
collided with Talley.
After Talley’s truck came to rest, Mathew
had time to look for a cigarette he had dropped and open the truck
door before the CSX van hit the vehicle Talley was towing.
In contrast to this evidence, which suggests that the van
driver had sufficient time to see Talley in trouble and either
avoid a collision or reduce his speed, is King’s affidavit stating
her belief that the driver of the van could not have avoided the
accident.
Viewing this conflicting evidence in the light most
favorable to plaintiff, we conclude that there is an issue of fact
to be decided by a jury.
“‘If there is any question as to the
credibility of witnesses or the weight of evidence, a summary
judgment should be denied . . . .’”
Moore v. Fieldcrest Mills,
Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 422 (1979) (omission in
original) (citation omitted).
The trial court therefore erred in
granting summary judgment for CSX as to the issue of whether CSX
violated the provisions of FELA by providing a negligent driver.
Affirmed in part and reversed in part.
Judges LEWIS and JOHN concur.
