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October 21, 1981

Mary Ann KRESS, Plaintiff,

The opinion of the court was delivered by: DUFFY


This is an action to recover damages under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. ("FELA"), for injuries sustained by the plaintiff when she was raped in a parking lot owned and maintained by her employer, the defendant Long Island Rail Road ("LIRR"). Both parties have moved for summary judgment on the issues of the application of FELA to this case and on the effect of a purported release.

Plaintiff Mary Ann Kress was employed by the LIRR as a freight clerk at its Jamaica, New York facility. Each day she traveled to work from her home near Huntington, New York, aboard one of defendant's passenger trains. The LIRR provided the plaintiff with a free pass to ride the train and permitted her to park her car for free at the Huntington railroad station in a lot which was owned and maintained by the LIRR for the exclusive use of its employees. Evidently, there were no parking facilities available at the Jamaica station where plaintiff worked. The complaint, as amended, alleges that on the evening of May 23, 1980, the plaintiff was raped in defendant's Huntington parking lot while on her way home from work. Ms. Kress seeks damages for her injuries caused by the alleged negligence of the LIRR in failing to provide adequate lighting and security at the parking lot.

 Several weeks after the incident, the plaintiff signed a release which purportedly discharged the LIRR from any obligations "for personal injuries sustained by (the plaintiff) and for loss of and/or damage to wearing apparel and other personal property, while employed as Clerk at or near Huntington, New York, on or about May 23, 1980" in return for $ 789.18.

 The defendant interposed an answer denying any knowledge of the rape incident. This answer was made despite a LIRR medical examiner's report stating that the plaintiff incurred a "vaginal injury." (Exh. I, Granatelli Affidavit). The defendant submits that the complaint fails to state a claim under FELA and that there is no subject matter jurisdiction over this matter. Further, defendant argues that any injuries to plaintiff were caused by her own negligence, and that to the extent the plaintiff was injured she was acting outside the scope of her employment. It is urged that, therefore, she may not recover under FELA. Alternatively, defendant contends that this complaint should be dismissed because plaintiff released defendant from all liability for any injuries.

 The plaintiff has moved for summary judgment under Fed.R.Civ.P. 56 striking each of defendant's answers except that regarding plaintiff's contributory negligence. Neither party at this stage has sought a determination of whether the LIRR was in fact negligent or whether its negligence, if any, caused plaintiff's injuries. The defendant cross-moves for summary judgment and dismissal of the complaint on the grounds set forth in the answer.


 1. The Release

 Defendant argues that the release signed by the plaintiff precludes her from bringing this lawsuit. This release was signed approximately five weeks after the alleged incident took place. Present at the time of the signing of this release were two LIRR officers, a representative from the union to which plaintiff belonged and the plaintiff. The two LIRR officers and the union representative submitted affidavits describing the circumstances surrounding the signing of this release. They each state that the plaintiff was fully apprised of the ramifications of signing this release, to wit, that she would be relinquishing her right to sue the defendant for the May 23, 1980 incident. Defendants argue that the union representatives adequately represented plaintiff's interests at the signing of the release.

 It is well settled that the validity of a release in a FELA case is governed by federal law, Dice v. Akron, C & Y R. Co., 342 U.S. 359, 361, 72 S. Ct. 312, 314, 96 L. Ed. 398 (1952), which recognizes inter alia inadequate consideration, Maynard v. Durham & S Ry. Co., 365 U.S. 160, 81 S. Ct. 561, 5 L. Ed. 2d 486 (1961), mutual mistake, Taylor v. Chesapeake and Ohio Ry. Co., 518 F.2d 536 (4th Cir. 1975) and fraud Apitsch v. Patapsco & Back Rivers Railroad Co., 385 F. Supp. 495, 503 (D.Md.1974), as grounds for setting aside a release. In this case, on the basis of plaintiff's affidavits, there presently exists genuine questions of fact regarding the adequacy of consideration for this release. Further, there remains a question of whether certain fraudulent statements were made by the defendant's representatives which induced plaintiff to sign the release. The plaintiff states that she was told to sign a "receipt" in order to receive a check for what she believed was back pay pursuant to the union contract with the LIRR. The release itself appears to say that $ 789.18 was paid "pursuant to a collective bargaining agreement between the (LIRR) and the union representing (the plaintiff)." If this amount was already due as back pay the release of defendant's liability for plaintiff's injury would not have been supported by consideration. Of course, if there was no pre-existing obligation to pay this amount, then there exists the question of whether the plaintiff was fraudulently induced to sign the release. Furthermore, plaintiff's affidavit asserts that union officials warned her against adverse union action if she had a lawyer represent her in this matter.

 Viewing the record before me, in a light most favorable to plaintiff, there appear to be genuine issues of fact over the validity of the release thus precluding summary judgment for the defendant on this ground. See First National Bank of Cincinnati v. Pepper, 454 F.2d 626, 629 (2d Cir. 1972). On the other hand, plaintiff's motion for summary judgment regarding the validity of the release also appears inappropriate because of the affidavits submitted by defendant which state that the settlement offer did not represent back pay (Hanley Affidavit P 2) and no coercive or fraudulent tactics were used to force plaintiff to sign the release. The resolution of these factual issues is unnecessary in light of my ultimate decision in this case.

 2. Stating a Claim Under FELA

 According to the defendant, no FELA claim lies under the facts alleged by the plaintiff because it is clear as a matter of law she was acting outside the scope of her employment when the alleged rape occurred. Section 1 of FELA, 45 U.S.C. § 51 (1939), provides in pertinent part:

Every common carrier by railroad while engaging in commerce between any of the several States ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its ...

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