The opinion of the court was delivered by: Wall, Magistrate Judge:
Before the court is plaintiff Scott Decker's motion for partial summary judgment on the issue of liability. DE. It is opposed by the defendant Long Island Railroad ("LIRR"). For the reasons set forth herein, the motion is DENIED. The parties are directed to submit additional briefing on the issues of whether Drill Engine number 103 was "in use" at the time of Decker's injury, and, if it was not, whether a violation of one of the regulations promulgated under the Locomotive Inspection Act can nevertheless establish negligence per se under the Federal Employers' Liability Act. The parties shall agree on a briefing schedule and inform the court of the dates.
The Complaint in this action was filed in June 2009 asserting claims pursuant to the Federal Employers' Liability Act, 49 U.S.C. §5, et seq., the Federal Locomotive Inspection Act, 49 U.S.C. §20701, and rules and regulations promulgated thereunder. The plaintiff also claimed negligence per se. DE. The case was assigned to District Judge Seybert. In December 2010, the parties consented to my jurisdiction for all purposes.
The Complaint alleges that the plaintiff, Scott Decker, was a Locomotive Engineer for the defendant LIRR, and that, while working on Drill Engine 103 on January 9, 2008, he fell and injured his left hand and wrist. The cause of the fall, he says, was an accumulation of oil and grease on a walkway. The parties appear to agree that there was oil on the walkway where Decker fell, but disagree as to how long it might have been there and whether Decker noticed it before he fell. Drill Engine No. 103 was taken out of service after the accident. The plaintiff says it was taken out of service "due to the presence of oil on the walkway of said engine." Pl. 56.1 Stmt. ¶9. The defendant says it was taken out of service "to be inspected for oil and to be cleaned." Def. 56.1 Counterstatement, ¶9. The plaintiff argues that the oil was there for a sufficient time that the defendant should or could have known it was there, but the defendant argues that there is an issue of material fact as to how long the oil was there - possibly only minutes- before Decker fell. This fully briefed motion was filed on March 18, 2011.
Summary Judgment Standards:
Pursuant to Federal Rule of Civil Procedure 56(c), courts may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). At this stage, the burden of proof is on the moving party to show that there is no genuine issue of material fact. Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219, 1223 (2d Cir. 1994)(citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). A genuine issue of fact exists if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L. Ed.2d 202 (1986).
In making this determination, the court must view all of the evidence "in the light most favorable" to the non-movant. Breland-Starling v. Disney Pub. Worldwide, 166 F. Supp. 2d 826, 829 (S.D.N.Y. 2001)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). In addition, the court must resolve all ambiguities and draw all inferences in favor of the party opposing the motion. Ackerman v. National Financial Systems, 81 F. Supp. 2d 434 (E.D.N.Y. 2000). Once the moving party has met its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56; see Liberty Lobby, 477 U.S. at 250.
In opposing the motion, the nonmoving party may not rely upon "mere conclusory allegations, speculation, or conjecture." Ackerman, 81 F. Supp. 2d at 436 (citing Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996)). However, "if there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable." Holt v. KMI Continental Inc., 95 F.3d 123, 129 (2d Cir. 1996).
In reviewing the evidence and the inferences that may reasonably be drawn, the court may not make credibility determinations or weigh the evidence . . . Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Kaytor v. Electric Boat Corp., 609 F. 3d 537, 545-46 (2d Cir. 2010))(internal citations and emphasis omitted). "Where an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate." Id. at 546 (citing Fed.R.Civ.P. 56(e) Advisory Committee Note (1963)).
The Federal Employers Liability Act and Locomotive Inspection Act Standards:
The FELA is a broad remedial statue that must be construed liberally in order to effectuate its purposes. Marchica v. Long Island R.R. Co., 31 F.3d 1197, 1202 (2d Cir. 1994). It provides that:
Every common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury or death resulting in whole or in part from the negligence of ...