United States District Court, N.D. New York
DANA L. SALAZAR, ESQ., SALAZAR and ERIKSON LLP, East Greenbush, NY Counsel for Plaintiff.
ANDREW J. KORNBLAU, ESQ., JOHN A. BONVENTRE, ESQ., LANDMAN CORSI BALLAINE & FORD P.C., Newark, NJ, Counsel for Defendant.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Currently before the Court, in this FELA action filed by plaintiff, David Cogan ("Plaintiff") are a motion for partial summary judgment and a supplemental motion for summary judgment by defendant, National Railroad Passenger Corporation, doing business as Amtrak ("Defendant" or "Amtrak"). See Dkt. Nos. 19, 25. For the reasons set forth below, Defendant's motion for partial summary judgment is granted and Defendant's supplemental motion for summary judgment is granted in part and denied in part.
I. RELEVANT BACKGROUND
A. Plaintiff's Claim
Generally, Plaintiff's Complaint asserts a claim to recover damages from Defendant for personal injuries under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. ("FELA"). ( See generally Dkt. No. 1 [Pl.'s Compl.].)
Plaintiff alleges that during his employment with Defendant, he "was exposed to occupational risk factors for serious injuries, including, but not limited to, injuries to his elbows and back as a result of actions required during his employment including, but not limited to, repetition, force, overweight baggage and awkward lifting positions." ( Id., at ¶ 14.) More specifically, Plaintiff alleges that, "while working within the course and scope of his employment[, he] was injured due to unsafe and inadequate working conditions, including, but not limited to, lifting and handling overweight baggage at stations with low platforms." ( Id., at ¶ 24.) As a result, Plaintiff alleges, he sustained injuries to his elbows and lower back. Plaintiff further alleges that his injuries were caused by the negligence of Defendant.
B. Recitation of Undisputed Facts
The following material facts are gleaned from Defendant's Local Rule 7.1 Statement of Undisputed Material Facts and Plaintiff's response thereto ( see Dkt. No. 19-2 [Def.'s Rule 7.1 Statement in Support of its Mot. Partial Summ. J.]; Dkt. No. 25-2 [Def.'s Rule 7.1 Statement in Support of its Supp. Mot. Summ. J.]; Dkt. No. 32-3 [Pl.'s Resp. to Def.'s Rule 7.1 Statement]) as well as Plaintiff's Local Rule 7.1 Counter Statement of Facts ( see Dkt. No. 32-3 [Pl.'s Rule 7.1 Counter Statement], where supported by the record.
Local Rule 7.1(a)(3) of the Local Rules of Practice for this Court requires that the nonmoving party file a response to the moving party's Statement of Material Facts, which admits or denies each of the moving party's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. See N.D.N.Y. L. R. 7.1(a)(3). It further provides that, to the extent that the nonmoving party fails to do so, the facts asserted in the movant's Statement of Material Facts will be deemed admitted, as long as they are supported by the record. Id.
Plaintiff has been employed with Defendant since June of 1991. Plaintiff began his employment as a lead service attendant and became an assistant yard or passenger conductor in 1994.
In response to Defendant's interrogatory seeking "a detailed description of each and every injury... caused by defendant[, ]" Plaintiff asserts that he "has suffered a back injury and two elbow injuries that developed over time because of, among other things, (1) lifting and moving luggage, in particular at station stops with so-called low platforms; (2) boarding up and down trap steps; (3) fighting and struggling with inoperable and/or frozen doors and trap doors; (4) using crowbars and sledge hammers to open and then close doors and trap doors; and (5) shoveling snow and salting vestibules." (Dkt. No. 19-5 at ¶ 3 [Pl.'s Response to Def.'s First Set of Interrogs.].) Plaintiff alleges that his injuries resulted from Defendant's failure to provide him with a reasonably safe workplace.
At his deposition, Plaintiff testified that lifting and moving luggage at low-platform steps caused or contributed to his injuries because it involved "repetitive motions in awkward positions with heavy luggage, and a lot of it." (Dkt. No. 19-7 at 66:8-12 [Dep. of David Cogan, Feb. 13, 2013].) Plaintiff also testified that he would have flare-ups of his back pain that were caused by "lifting" and "[f]ighting with the traps, fighting with the equipment." (Dkt. No. 19-8 at 88:15-89:5 [Cogan Dep.].)
On May 2, 2003, Plaintiff noted that he had been having back problems on a medical history questionnaire during treatment with Dr. Marc Fuschs. On a November 4, 2004 medical history questionnaire, Plaintiff again noted lower back problems and indicated he had seen a chiropractor for same. On January 7, 2008, Plaintiff complained to his chiropractor, Dr. Timothy Kelly, of lower back pain as a result of lifting bags and shoveling. Plaintiff indicated that he has had similar back problems in the past. Plaintiff treated with Dr. Kelly twenty-one times for back pain between January 7 and May 9, 2008. On April 29, 2009, Plaintiff again saw Dr. Kelly for low back pain from "riding the train." Plaintiff resumed weekly chiropractic treatments with Dr. Kelly through June 19, 2009.
At his February 13, 2013 deposition, Plaintiff admitted that he experienced back pain more than three years before filing his Complaint in this action. Plaintiff testified that he first developed back pain around 2003 or 2004, when his back was sore after work. Plaintiff also recalled seeking medical treatment for his back pain with Dr. Laximant Bhouwla, his primary care physician, in 2006 or 2007. Plaintiff testified that he probably discussed the lifting of luggage with Dr. ...