Posted February 6, 2017 2:34 PM
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FELA claim belongs in state court

railroad 2-6-17,ph02
George T. Brugess
By Lauraann Wood
Law Bulletin staff writer

A man’s lawsuit against a Virginia-based railroad company will return to the Daley Center after a federal judge found he alleged sufficient facts to present his claims in state court.

Norfolk Southern Railway Co. removed the premises-liability lawsuit filed by James Taylor to federal court in May, arguing he lacked a basis in both fact and law to sue in Cook County Circuit Court under the Federal Employers Liability Act.

FELA provides injured railroad workers the right to sue in either state or federal court. But without a valid FELA claim, Taylor’s case on other allegations would have remained in federal court pursuant to diversity jurisdiction.

Taylor alleges he suffered injuries after getting struck by a semitrailer in Norfolk Southern’s Calumet yard.

Taylor was employed by Tinley Park-based ITS Technologies and Logistics LLC, which subcontracted with the railroad to load and unload items between train containers and semitrailers — work that had historically been performed by railroad employees, said George T. Brugess, a partner at Cogan & Power P.C. who represents Taylor.

The company, which leased rail yard property from Norfolk, also handled trucking operations by providing the truck drivers and trailers used to transport the container among other duties, he said.

The incident happened last January after Taylor was called to the railroad’s intermodal yard by railroad management for a meeting, Brugess said. He suffered laceration and crushing injuries to his abdomen, spent nine months recovering in a nursing home and is still being rehabilitated to improve his ability to walk, Brugess said.

“He could probably be on his feet for an hour a day,” he said.

Taylor filed suit against Norfolk Southern in April, alleging he was a joint railroad employee under the railroad’s control at the time of the incident.

Norfolk Southern removed the case to federal court two months later, asserting Taylor had no basis in fact or law to assert a claim under FELA since he was working primarily with semitrailers.

U.S. District Judge Joan B. Gottschall initially ruled the railroad raised an adequate issue of whether Taylor had a legitimate claim under FELA or “has done nothing more than name the statute,” but she allowed Taylor to amend his complaint to specify his basis for the claim.

Taylor’s amended complaint alleged his job duties included loading and unloading functions using Norfolk Southern-owned equipment on and around tracks which the railroad assigned trains, and he would have to go into railroad-owned buildings and coordinated schedules with railroad employees.

Arguing Taylor had no FELA claim, Norfolk Southern presented a map of the rail yard and argued a gravel road separated the railroad’s work from ITS’ work.

Gottschall found the conflicting evidence presents a “close, factual question” regarding the railroad’s control over Taylor since “[p]hysical separation can weigh in favor of finding separate employment under FELA.”

But Gottschall found Taylor’s allegation that Norfolk Southern supervisors sometimes ordered him to perform loading and unloading work himself “stands uncontradicted by competent evidence.”

In her ruling, Gottschall cited an affidavit from the railroad’s regional manager which stated railroad trainmasters take issues with intermodal operations up with either the railroad’s intermodal manager, its division manager or him.

“Even if this statement can be viewed in a light favorable to NS as reflecting official policy, [the manager’s] affidavit does not demonstrate that he has personal knowledge of the day-to-day operations at the Calumet Yard and, therefore whether the purported policy is followed or, as Taylor alleges, NS employees sometimes direct Taylor to load and unload cars personally.”

Brugess said he and his client were pleased with the ruling. The railroad seemingly used the tactic to avoid federal liability, he said, and Gottschall’s opinion protects plaintiff’s right to choose the court in which they want to file suit.

“It’s the railroad trying to avoid their responsibility under the FELA by subcontracting out work, and the court saw through that,” he said. “It’s an important part of American jurisprudence that plaintiffs have the right to pick their forum.”

Norfolk Southern was represented by Wilson Elser Moskowitz Edelman & Dicker LLP partner Mary Louise Kandyba as well as associates Edward A. DeVries and John C. Stiglich II. Stiglich deferred comment to Kandyba, who could not be reached.

Taylor is also represented by Cogan & Power partner John M. Power and associate Michael C. Terranova.

The federal case is James Taylor v. Norfolk Southern Railway Co., 16 C 5551.

The Cook County Circuit Court case is James Taylor v. Norfolk Southern Railway, 16 L 65020.

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