The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Joseph Corsale, Jr. brought this action against his employer, Delaware & Hudson Railway Company, Inc. (D&H), under the Federal Employers' Liability Act (FELA),*fn1 alleging D&H's liability for injuries he sustained to his left knee in the course of his employment. (See Compl., Dkt. No. 1.) Pending is D&H's motion for summary judgment. (Dkt. No. 18.) For the reasons that follow, the motion is denied.
Corsale began his employment with D&H in July 1954. (See Def. SMF ¶ 1, Dkt. No. 18:12.) From approximately 1955, Corsale has held the position of a trainman, most recently as a conductor. (See id.) Beginning around 2004, Corsale was assigned to work a job that traveled between D&H's rail yard in Saratoga Springs, New York, the "Saratoga Yard," and D&H's rail yard in Albany, New York, the "Kenwood Yard." (See id. at ¶ 4.) As part of his job, Corsale was required to "yard" his train. (See id. at ¶ 3.) Specifically, "[o]nce the engineer of the train 'parked' the train on the track designated by the yardmaster, [Corsale] would get off the engine, disconnect the power cables running from the engine to the railcars, and align the track switches so that the engine could pull away from the rest of the train/railcars." (Id.)
On March 31, 2006, Corsale reported to work at the Saratoga Yard and was instructed, along with an engineer, to take a train to the Kenwood Yard and "yard" it on track "KS3," which is located in the south end of the yard. (See id. at ¶¶ 5, 6.) Upon arrival at the Kenwood Yard, the engineer pulled the train onto track KS3, and Corsale began the "yarding" process by exiting the cab of the locomotive and disconnecting the power cable. (See id. at ¶ 8.) Corsale then "crossed over the track and proceeded up the track toward the switch, walking between tracks 4 and 5." (Id.) Corsale claims that as he was walking, the ground "went out from under [him]," allegedly causing him to twist and injure his left knee. (See id. at ¶ 9; Pl. Reply to SMF at ¶ 9, Dkt. No. 21:1.) According to Corsale, the area sank down "probably a foot," and the size of the area that gave way was "probably maybe two or three feet by three feet." (See Pl. Reply to SMF at ¶ 10, Dkt. No. 21:1.)
Corsale alleges that the ground "gave way" because it "was the scene of a previous derailment, and the fill in the area was not properly tamped down and leveled." (See Pl. Answer to Interrogs. ¶ 18, Dkt. No. 18:8.) Corsale claims that, prior to his incident, others told him about a derailment in the "south end of the yard," and that, in the "days or weeks" leading up to the incident, "he observed railroad employees working in the area where the accident occurred and using machinery for removing and replacing railroad ties and rails." (See Corsale Dep. at 39-41, Dkt. No. 18:4; Pl. Reply to SMF ¶ 37, Dkt. No. 21:1.) According to Corsale, "[u]sing that equipment, and the work repairing tracks, always results in disturbance to the ground adjacent to the tracks, which also needs to be repaired." (Pl. Reply to SMF ¶ 38, Dkt. No. 21:1.)
On May 30, 2008, Corsale filed suit against D&H under FELA, claiming that D&H negligently failed to provide him with a reasonably safe place to work, and thereby caused him to injure his left knee, incur medical expenses, endure physical and emotional pain and suffering, and suffer a loss of earnings and earning capacity. (See Compl. ¶¶ 1013, Dkt. No. 1.) On January 15, 2010, following discovery, D&H moved for summary judgment on Corsale's claims. (See Def. Mem. of Law at 1, Dkt. No. 18:10.)
The standard for the grant of summary judgment is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town of Argyle, 499 F. Supp. 2d 192, 194-95 (N.D.N.Y. 2007).
B. Federal Employers' Liability Act
FELA is a broad remedial statute that must be construed liberally in order to effectuate its purposes. Marchica v. Long Island R.R. Co., 31 F.3d 1197 (2d Cir.1994). Under FELA, a railroad engaged in interstate commerce is liable to "any person suffering injury while he is employed by [the railroad] ... for such injury ... resulting in whole or in part from the negligence of any of [its] officers, agents, or employees." 45 U.S.C. § 51.
The Second Circuit "construes the statute, in light of its broad remedial nature, as creating a relaxed standard for negligence as well as causation." Williams v. Long Island R.R. Co., 196 F.3d 402, 406 (2d Cir. 1999) (internal quotation marks and citation omitted). However, "FELA is not a strict liability statute, and the fact that an employee is injured is not proof of negligence." Id. (internal quotation marks and citations omitted). "FELA does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur." Capriotti v. Consol. Rail Corp., 878 F. Supp. 429, 431 (N.D.N.Y. 1995) (internal ...