On 09/19/2016 RAUL JUAREZ filed a Personal Injury - Other Personal Injury lawsuit against BNSF RAILWAY COMPANY, A DELAWARE COMPANY. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARGARET M. BERNAL and MARGARET MILLER BERNAL. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
MARGARET M. BERNAL
MARGARET MILLER BERNAL
DOES 1 THROUGH 100
BNSF RAILWAY COMPANY
WILCOXEN CALLAHAM LLP
KAPLAN JAY A.
JENNI MICHELLE CATCHOT
KRISSMAN JAROD ADAM ESQ.
SONNETT ANTHONY EVAN
SONNETT ANTHONY EVAN ESQ.
6/28/2019: Ex Parte Application
3/28/2018: DEFENDANT BNSF RAILWAY COMPANY'S MOTION TO CONSOLIDATE RELATED ACTIONS FOR ALL PURPOSES; DECLARATION OF V. ALAN ARSHANSKY
4/27/2018: Minute Order
5/10/2018: STIPULATION FOR CONSOLIDATION AND CONTINUANCE OF TRIAL; ORDER
5/16/2018: NOTICE OF RULING
6/22/2018: DEFENDANT BNSF RAILWAY COMPANY'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS 10 PLAINTIFF RAUL JUAREZ
6/22/2018: DECLARATION OF V ALAN ARSHANSKY IN SUPPORT OF DEFFENDANT BNSF RAILWAY COMPANY'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
6/22/2018: DECLARATION OF PHILLIP HEUSLER IN SUPPORT OF BNSF RAILWAY COMPANY'S MOTION FOR SUMMARY JUDGMENT
6/22/2018: SEPARATE STATEMENT OF DEFENDANT BNSF RAILWAY COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF RAUL JUAREZ
8/23/2018: DECLARATION OF MICHELLE JENNI IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
8/23/2018: PLAINTIFFS? OBJECTIONS TO EVIDENCE
8/31/2018: FURTHER DECLARATION OF V. ALAN ARSHANSKY IN SUPPORT OF DEFENDANT BNSF RAILWAY COMPANY?S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
8/31/2018: RESPONSE TO PLAINTIFF?S OBJECTIOIONS TO EVIDENCE
11/14/2018: Other -
11/14/2018: Minute Order
7/21/2017: Notice of Related Cases
8/16/2017: Notice of Related Cases
at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Hearing on Ex Parte Application (for continuance of Trial) - HeldRead MoreRead Less
Minute Order ( (Hearing on Ex Parte Application filed by defendant for conti...)); Filed by ClerkRead MoreRead Less
Stipulation and Order (Stipulation and Order Continuing Trial); Filed by BNSF Railway Company (Defendant)Read MoreRead Less
Ex Parte Application (Ex Parte Application); Filed by BNSF Railway Company (Defendant)Read MoreRead Less
at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Case Management Conference - HeldRead MoreRead Less
at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Trial Setting Conference - HeldRead MoreRead Less
Other - (Trial Setting Order); Filed by ClerkRead MoreRead Less
Minute Order ((Case Management Conference; Trial Setting Conference)); Filed by ClerkRead MoreRead Less
Case Management Statement; Filed by Raul Juarez (Plaintiff)Read MoreRead Less
Notice (of Court;s order setting case for case management conference/ trial setting conference on 11/14/18); Filed by Raul Juarez (Plaintiff)Read MoreRead Less
Minute OrderRead MoreRead Less
Notice of Related CasesRead MoreRead Less
Answer; Filed by BNSF Railway Company (Defendant)Read MoreRead Less
Notice of Related Case; Filed by BNSF Railway Company (Defendant)Read MoreRead Less
DEFENDANT BNSF RAILWAY COMPANY'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINTRead MoreRead Less
Answer; Filed by BNSF Railway Company (Defendant)Read MoreRead Less
Complaint; Filed by Juan Duran (Plaintiff)Read MoreRead Less
COMPLAINT FOR DAMAGESRead MoreRead Less
Complaint; Filed by Raul Juarez (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC634508 Hearing Date: December 10, 2019 Dept: SEC
JUAREZ v. BNSF RAILWAY COMPANY
CASE NO.: BC634508
JUDGE: OLIVIA ROSALES
Defendant BNSF Railway Company’s motion for summary adjudication is taken OFF-CALENDAR as moot. The court is in receipt of Plaintiff’s Notice of Settlement of Entire Case filed on 11/12/19.
Case Number: BC634508 Hearing Date: November 12, 2019 Dept: SEC
JUAREZ v. BNSF RAILWAY COMPANY
CASE NO.: BC634508
JUDGE: MARGARET M. BERNAL
Defendant BNSF Railway Company’s motion for summary adjudication is GRANTED as to Issue 1, and DENIED as to Issues 2-3. As triable issues remain, motion for summary judgment is DENIED.
Plaintiff to give NOTICE.
Defendant BNSF Railway Company (“BNSF”) moves for summary judgment/adjudication pursuant to CCP 437c.
Plaintiff’s evidentiary objections are overruled. Plaintiff improperly lodged objections within the separate statement, and failed to comply with the mandatory provisions of CRC 3.1354.
BNSF’s evidentiary Objections1-11 are also overruled.
Plaintiff Juarez alleges that he was employed by BNSF as a machine operator on 10/27/13. While moving his machine at a low rate of speed to get equipment off the tracks, Juarez collided with a stopped machine. He tried to get out of his seat but could not operate his seat belt in his panic. The BNSF foreman and other parties began laughing at his reaction to the collision. The Complaint alleges causes of action for:
FELA – Negligence
FELA – Strict Liability/Negligence Per Se
A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)
BNSF contends that it is entitled to summary judgment because it was not negligent.
Alternatively, BNSF seeks summary adjudication of the following issues:
The 2nd cause of action for Negligence per se fails as there is no evidence of any statutory violation
Plaintiff’s emotional injury claim fails as the acts were unsanctioned horseplay
Plaintiff’s physical injury claim fails as the swing loader’s seatbelt was not defective.
Plaintiff’s Request for Continuance
Plaintiff contends that a continuance is necessary pursuant to CCP 437c(h) to depose Defendant’s witness, Phil Heusler. However, the opposing party’s declaration in support of a motion to continue must be filed prior to the Opposition deadline, and should show the following: 1) facts establishing a likelihood that controverting evidence may exist; 2) specific reasons why such evidence cannot be presented at the present time; 3) an estimate of the time necessary to obtain such evidence; and 4) the specific steps or procedures the opposing party intends to utilize to obtain such evidence. (CCP 437c(h); Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.)
Plaintiff failed to submit a declaration under CCP 473c(h). The request for continuance is denied.
Plaintiff’s complaint against BNSF is brought under the Federal Employers’ Liability Act, 45 USC 51 (“FELA”). FELA establishes a comprehensive mechanism for compensating railroad employees for injuries resulting from their employer's negligence. (Nordgren v. Burlington Northern R.R. Co. (8th Cir. 1996) 101 F3d 1246, 1252.)
FELA was passed in response to the special needs of railroad workers and must be construed liberally for their protection. (Lewy v. Southern Pac. Transp. Co. (9th Cir. 1986) 799 F.2d 1281, 1287-1288.) Thus, to read into the all-inclusive wording of the act a restriction as to the kinds of employees covered, the degree of negligence required, or the particular sorts of harms inflicted, would contradict the wording, the remedial and humanitarian purpose, and the constant and established course of liberal construction of the act followed by the Supreme Court of the United States. (Urie v. Thompson (1949) 337 U.S. 163, 181-182.)
Railroad employment has been broadly interpreted to extend not only to acts required by the employer, but also to those acts necessarily incidental to the employment. (Feichko v. Denver & Rio Grande Western Railroad Co. (10th Cir. 2000) 213 F.3d 586, 592.) But, given its most liberal interpretation, FELA cannot be extended to cover activities not necessarily incident to or an integral part of employment in interstate commerce; it obviously does not cover activities undertaken by an employee for a private purpose and having no causal relationship with his employment. (Quirk v. New York C. & St. L.R. Co. (7 Cir. 1951) 189 F.2d 97.) The Restatement at § 229 sets forth intelligent factors for a factfinder to consider in determining whether this has happened. No one factor is dispositive; establishing one or more factors is not equivalent to establishing scope of employment. (Wilson v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. (7th Cir. 1988) 841 F.2d 1347, 1355.)
BNSF submits the following evidence:
On 10/27/13, the day of the incident, Juarez was assigned to remove old rail and prepare the area for the installation of new rail. (Defense Separate Statement (DSS) 2.)
Plaintiff attended the job briefing for that day. (DSS 4-5.)
Plaintiff met with the foreman and another job briefing was held. (DSS 6.)
Plaintiff was told he was going to operate the swing loader to move rails. (DSS 8.)
Plaintiff had operated a swing loader for 10-15 years. (DSS 9.)
Plaintiff inspected his swing loader, found nothing wrong with it, and proceeded with his job tasks. (DSS 10.)
As Plaintiff was reversing in his swing loader, he struck a portable power unit, positioned in the bucket of co-employee Duran’s backhoe, which was working behind him prior to the incident. (DSS 17-18.)
Upon impact, he heard a loud yell and stopped his machine. (DSS 19.)
Believing he had struck a co-worker, he frantically attempted to get out of his seat but could not get his seatbelt off. (DSS 20.)
After releasing his seatbelt, Plaintiff exited the machine, running behind it “expect[ing] to see somebody laid out back there.” (DSS 21.)
As he ran behind his machine, he realized his fellow employees were laughing at the situation. (DSS 22.)
Plaintiff claims emotional distress from his co-workers’ laughing (DSS 23) and back injuries because the seat belt snapped him back into his seat (DSS 24.)
The BNSF crew complied with all applicable regulations, rules, and operating policies. (DSS 38.)
No problems or safety issues were found during the post-incident inspection of the swing loader. (DSS 47.)
BNSF contends that there is no evidence that BNSF was negligent in any way.
In opposition, Plaintiff presents the following evidence:
Martin Preciado’s responsibility was to make sure everything got done and that everybody works safe. (Plaintiffs Separate Statement (PSS) 4.)
As a foreman, one of Preciado’s jobs was to make sure that the work being assigned was being done in a safe manner. (PSS 5.)
One of Preciado’s job was to have a general awareness of the work environment and to look out for hazards that may be approaching by way of either a train or rolling equipment. (PSS 6.)
Preciado saw Juarez coming down the track in his swing loader towards him and his crew, however, he was not looking to see if he was going to get close to the crew working on the ground by the backhoe. (PSS 7.)
A BNSF employee who is working with another employee is responsible for the safety of that other employee to the extent that their work is interacting with each other. (PSS 8.)
Juarez’s swing loader is a ten foot tall machine. (PSS 10.)
The court finds that triable issues exist as to whether BNSF was negligent. There is no dispute that Plaintiff was an employee of BNSF and that the collision occurred during the course and scope of his employment. Plaintiff’s swing loader struck a portable power unit that was positioned in the bucket of another machine, a backhoe, that was working behind Plaintiff prior to the incident. (DSS 17-18.) Triable issues exist regarding whether BNSF could have prevented the collision. Preciado’s job was to have a general awareness of the work environment and to look out for hazards that may be approaching by way of either a train or rolling equipment. (PSS 6.) Preciado saw Juarez coming down the track in his swing loader towards him and his crew, however, he was not looking to see if he was going to get close to the crew working on the ground by the backhoe. (PSS 7.) A BNSF employee who is working with another employee is responsible for the safety of that other employee to the extent that their work is interacting with each other. (PSS 8.) Triable issues therefore exist regarding BNSF’s Negligence.
Accordingly, summary judgment on the issue of Negligence is DENIED.
BNSF contends that the 2nd cause of action for Negligence Per Se fails as there is no evidence of any statutory violation.
BNSF submits the following evidence:
Job briefings and track protection were in compliance with BNSF rules and regulations. (DSS 61-65.)
The task Plaintiff was performing at the time of the incident does not require the assistance of a lookout, although if requested, the other crew members could have provided this assistance. (DSS 67.)
No rule or regulation, including BNSF rules and federal regulations, requires the assignment of a lookout for the task Plaintiff was performing. (DSS 69.)
BNSF crew assigned on this job performed their duties in compliance with all applicable regulations, rules and operating policies. (DSS 70.)
No problems or safety issues were found during the post-incident inspection of the swing loader. (DSS 72.)
The court finds Defendant has met its initial burden of production.
In opposition, Plaintiff attempts to “dispute” defendant’s separate statement, but provides absolutely no evidence in dispute that would support Plaintiff’s allegation that Defendant violated any statutory rules or regulations. Instead, Plaintiff interjects objections in the separate statement, which this court has overruled.
Accordingly, summary adjudication is GRANTED as to Issue 1.
BNSF contends Plaintiff’s emotional injury claim fails because his fellow employees’ laughing was unsanctioned “horseplay,” and outside the scope of employment. (See Copeland v. St. Louis-San Francisco R. Co. (10th Cir. 1961) 291 F.2d 119, 121-22; Blunk v. Atchison T&S F. Co. (1950) 97 Cal.App.2d 229, 233.)
However, this court finds that triable issues exist because Plaintiff is not alleging that the laughing caused him mental anguish. Plaintiff produces evidence that he feared that he had injured or killed one of his fellow employees by pinning him beneath the swing loader and the backhoe. He submits evidence that he was diagnosed with PTSD by a counselor and a physician. (Disputed DSS 77.)
Thus, triable issues exist regarding whether the collision caused Plaintiff’s emotional injury. Summary adjudication of Issue 2 is DENIED.
BNSF contends that Plaintiff’s physical injury claim fails because the swing loader’s seatbelt was not defective. (DSS 90.) Plaintiff’s physical injury was the result of his own negligence in failing to unbuckle his seat belt before properly exiting the vehicle. (See Lanham v. CSX Transportation, Inc. (4th Cir. 1993) 1993 US App. Lexis 13045, *6.)
However, Plaintiff is not alleging that the seatbelt was defective. As a result of the collision, and Plaintiff’s fear that he had killed someone, Plaintiff sustained injuries as he was trying to hastily exit the vehicle before the seatbelt was unfastened. (DSS 20-21.) Triable issues therefore exist regarding whether the collision caused Plaintiff’s injuries.
Summary adjudication of Issue 3 is DENIED.
 Restatement Second of Agency, section 229, provides:
(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.
(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:
(a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is apportioned between different servants;
(e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;
(f) whether or not the master has reason to expect that such an act will be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.