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Nygaard v. BNSF Railway Co.

Court of Appeals of Minnesota

June 10, 2013

Randy Nygaard, Appellant,
BNSF Railway Company, Respondent.


Hennepin County District Court File No. 27CV1118213

Paula M. Jossart, Christopher J. Moreland, Bremseth Law Firm, P.C., Minnetonka, Minnesota (for appellant)

Lee A. Miller, Kimberly L. Johnson, Noelle L. Schubert, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Stoneburner, Presiding Judge; Connolly, Judge; and Larkin, Judge.


Appellant challenges the summary-judgment dismissal of his claims against his former employer, respondent railroad, arising out of an injury to his knee, which appellant alleges was caused by defective equipment and unsafe working conditions. Appellant asserts that the district court erred by holding that the Federal Safety Appliances Act (SAA) does not apply to his claim and by holding that he cannot recover in negligence under the Federal Employers' Liability Act (FELA) because he failed to present sufficient evidence of breach or foreseeability. Because we conclude that the SAA does not apply, we affirm summary judgment in favor of respondent on appellant's SAA claim. Because appellant presented sufficient evidence of breach and foreseeability to withstand summary judgment dismissing his FELA claim, we reverse the dismissal of this claim and remand for further proceedings.


Appellant Randy Nygaard began working for respondent BNSF Railway Company (BNSF) in 1978. In July 2010, he was a switchman/brakeman in Grand Forks, North Dakota. His job duties included coupling and uncoupling rail cars, assembling and disassembling trains, and connecting, repairing, and replacing air-brake hoses.

On the day that he was injured, Nygaard and his co-worker, Chad Gilbertson, were assigned to take cars to and from, the North Dakota Mill (the Mill), one of BNSF's customers located outside of the Grand Forks rail yard. Trains use the main track to get to and from the Mill. Nygaard and Gilbertson had to assemble 15 to 25 cars and an engine. Nygaard was equipped with a remote-control-operated unit (RCO) to control the engine. Using the RCO, he could, from any location along the assemblage of cars, prevent the engine from moving.

After the cars and engine were assembled, Nygaard and Gilberston were required to test the air brake system before the train could move. To test the air brake system, they attached the air-brake hoses between the cars and Nygaard "cut the air" into the hoses from the engine, but the air did not reach Gilbertson, who was at the end of the cars. Nygaard began inspecting the air-brake hoses, beginning at the front of the train. About five cars back from the engine, he found a damaged air hose. Nygaard retrieved a new hose and a wrench from the engine and used the RCO to put the train into emergency mode to prevent the engine from moving while he replaced the damaged hose.

There was nothing unusual about the fact that an air hose was damaged at the Mill. Nygaard testified in his deposition that the Mill employees often damaged air hoses while using front-end loaders to move cars around the facility and that BSNF was aware of such damage. BNSF Terminal Manager Hjerstedt testified in his deposition that he knew about rail cars being damaged at the Mill "be it from the car mover or someone running into them."

To replace the hose, Nygaard had to kneel in ballast. Nygaard testified in his deposition that the ballast at the Mill is "mainline ballast, " also called "road ballast, " which is larger, more uneven, and more difficult to work in than "yard ballast, " also called "fines, " which is the ballast used in the Grand Forks yard. Nygaard asserts that use of road ballast in a yard is inappropriate and that he and other BNSF employees had complained about the hazardous working conditions at the Mill due to the use of road ballast. Nygaard did not wear kneepads while he knelt in the road ballast.

When he stood up after the repair, Nygaard's right knee was "very sore." The pain persisted. Nygaard saw Dr. Jeffrey Eickman two days later. Dr. Eickman noted that Nygaard did not remember any particular event that would have caused his knee pain. The next day, Nygaard filed an injury report with BNSF. On his injury report he wrote the following description of how he was injured: "Kneeling Bending Possibly while changing hose Monday Afternoon was kneeling in Ballast."

Nygaard received follow-up treatment from Dr. Phillip Johnson in January 2011. On Dr. Johnson's advice, Nygaard quit his job. He had surgery on his right knee in April 2011. Dr. Johnson has opined that the July 2010 incident of kneeling in road ballast caused Nygaard's right knee injuries in whole or in part, resulting in the need for surgery.

In September 2011, Nygaard sued BNSF for damages arising out of his knee injury, asserting claims for negligence under the FELA and strict liability under the SAA. Nygaard alleged that BNSF was negligent because it failed to provide a reasonably safe workplace, failed to provide him with safe and proper equipment, failed to inspect, maintain, and repair the properties and equipment employees used, and "failed to properly instruct and/or correct unsafe procedures used by its customers." Nygaard alleged that BNSF violated the SAA by using or allowing use of defective and unsafe air hoses which resulted in his injury.

Nygaard and BNSF filed cross-motions for summary judgment. The district court denied Nygaard's motion and granted summary judgment for BNSF, concluding that the SAA does not apply to this incident and that Nygaard failed to make a sufficient showing of breach of duty or foreseeability to preclude summary judgment dismissal of his FELA negligence claim. This appeal followed.


I. Summary judgment standard of review

A district court's summary-judgment decision is reviewed de novo. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010). The role of this court when reviewing a grant of summary judgment "is to determine whether there are any genuine issues of material fact and whether the [district] court erred in its application of the law." Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). We may not weigh the evidence or make factual determinations, but must consider the evidence in the light most favorable to the ...

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