Illinois Federal Judge Finds Affidavit Rescues Injury Case From Summary Judgment; Scott v. BNSF

An Illinois federal district court judge has ruled in favor of a railroad employee who provided a deposition and an affidavit following an injury he sustained while operating equipment that was designed to prevent runaway trains. The judge ruled that the employee’s affidavit did not squarely contradict a statement given in an earlier deposition.

The subject of the case was the injury to B.S., who hurt his shoulder allegedly because of defective equipment that the railroad should have spotted and corrected during routine inspections and maintenance. The plaintiff brought suit against BNSF under the Federal Employers’ Liability Act (FELA).

According to the lawsuit, the accident involved a safety device called a “derail,” which was designed to prevent trains from running away, reaching mainline tracks by shifting wheels off of those tracks. The derails are turned on and off by throwing a large handle.


In this case, when B.S. crouched down, grabbed the derail’s handle with both hands and threw the switch to activate the safety device, the spikes that secure the mechanism popped out of the ties, causing him to hurt his shoulder. The lawsuit also alleged that the deterioration of the ties caused the spike holes to enlarge.

The issue in this case became his deposition testimony. At that deposition, B.S. testified that he inspected the rails and ties before throwing the switch and saw “nothing out of the ordinary.”
BNSF relied on that admission and moved for summary judgment, arguing that it had no reasonable way of determining whether there was a hazardous condition on the tracks.

As part of his response to the motion for summary judgment, B.S. relied on photographs. The photographs showed that the ties had large splits and cracks. But the deposition testimony from a BNSF superintendent was that “it takes months or years” for ties to deteriorate to the point where spikes would pop out. In addition to the supervisor’s deposition testimony, B.S. also submitted an affidavit in which he explained that the deposition testimony, in which he said he saw nothing “out of the ordinary,” he did not mean there was nothing wrong with the ties. The affidavit added that B.S. meant that he often noticed decrepit ties.

The trial judge’s conclusion considering the affidavit was that it did not “squarely” contradict his deposition testimony. In reaching that, Judge Grady denied BNSF’s motion.

In the judge’s opinion, he noted that the intent of the FELA was to provide broad remedial measures for railroad employees. The law is such that a railroad would be held liable if the employer’s negligence played any part — even the slightest — in producing the injury.

According to Judge Grady, “A plaintiff’s burden in an FELA action is therefore significantly lighter than it would be in an ordinary negligence case.” Judge Grady said that the burden is still on the plaintiff to present some evidence of negligence in order to survive the motion for summary judgment.

BNSF argued in its motion for summary judgment that B.S. failed to produce evidence that the company was negligent, focusing on the element of forseeability.

BNSF also objected to the affidavit supplied by B.S. in response to the motion. BNSF argued that the affidavit contradicts Scott’s prior deposition testimony and should be disregarded as a sham.

The Seventh Circuit Court of Appeals has “long followed the rule that parties cannot thwart the purposes of Rule 56 (motions for summary judgment) by creating ‘sham’ issue of fact with affidavits that contradict their prior depositions.” Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162 (7th Cir, 1996).

Here the court found that, in reviewing the plaintiff’s deposition testimony with his affidavit, there was no direct contradiction of testimony. This was true even though B.S. had testified at deposition that nothing looked out of the ordinary at the derail. On the other hand, he did testify that he believed the holes for the spikes “had wore out” and had become too large. He said he believed that the derail had not been regularly inspected as required.

In conclusion, Judge Grady reached his decision denying the motion for summary judgment for several reasons. One was that the “plaintiff-friendly” nature of the FELA and the fact that all reasonable inferences in the plaintiff’s favor must be drawn together. That included the photographs of the tie and derail.

Scott v. BNSF, No. 08 C 4908 (April 20, 2012).

Kreisman Law Offices has been handling train, truck and automobile collisions for those seriously injured for more than 36 years in and around Chicago, Cook County and its surrounding areas, including Chicago (Lincoln Park), Lincolnwood, Morton Grove, Chicago (Roscoe Village), Maywood, Hinsdale, Alsip, Homewood, Arlington Heights and Naperville, Illinois.

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