Guerrero v. BNSF Railway Co., No. 19-1187 (7th Cir. 2019)Annotate this Case
Guerrero was trying to drive to his job at BNSF Railway through a snowstorm early one morning. His car skidded, collided with a snowplow, and he was killed. His widow sought compensatory damages from BNSF under the Federal Employer’s Liability Act (FELA, 45 U.S.C. 51–59). The district court ruled in favor of BNSF. The Seventh Circuit affirmed. Stating that the question of whether Guerrero was within the scope of his employment when the accident occurred was a close one, the court declined to resolve the issue. Guerrero was not heading to his normal job, but had accepted a special assignment; his union contract provides that “the time of an employee who is called after release from duty to report for work will begin at the time called.” Looking at the evidence favorably to Guerrero, he was not commuting, but was “on the clock” and working on the special assignment. No jury, however, could find that BNSF was negligent in any action it took or failed to take with respect to Guerrero. FELA does not make the employer the insurer of the safety of his employees while they are on duty. The only action BNSF took was to ask Guerrero to come to work under conditions known to both parties.