The Douglas County District Court of Nebraska granted partial summary judgment in favor of the railroad on plaintiff’s Locomotive Inspection Act (“LIA”), 49 U.S.C. § 20701, claim. Later, the Court denied the railroad’s motion for summary judgment on plaintiff’s Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51, claim, however the Court still dismissed plaintiff’s case for failure of prosecution. The case involved two falls by an engineer occurring on back-to-back days. On the first day, he claimed he fell down locomotive steps due to the lack of a handrail, and on the subsequent day, he fell on ballast that was “uneven” and “gave way” in a railyard while he was walking to a crew van. He claimed permanent and debilitating injuries to his knee.
The railroad moved for summary judgment on the LIA claim because plaintiff could not identify or prove a defect in the locomotive to support his claim. Plaintiff alleged a design defect theory of liability as well as rule and regulatory violations in maintenance of the locomotive. In dismissing the claim, the Court found the facts undisputed that the locomotive was in compliance with all Federal Railroad Administration locomotive safety regulations and the LIA. Order Granting Motion for Partial Summary Judgment 2-6-15
The railroad later moved for summary judgment on the FELA claim because the railroad was in compliance with the federal regulations governing track structures and ballast regulations and plaintiff had failed to identify any defect in the ballast where he was walking. The Court denied the motion holding there were facts issues in dispute. The Court subsequently twice scheduled the claim for trial, and plaintiff moved for continuances on both occasions. Order Denying Motion for Summary Judgment
At the second setting of the trial, plaintiff was not prepared to proceed and he admitted he could not establish his case without a medical expert on the issue of causation. After examining the docket and the multiple delays in the proceedings, the Court dismissed plaintiff’s remaining claims pursuant to Neb. Rev. Stat. § 25-601(2) and/or (5). Dismissal Order
Odell v. BNSF Railway Company, Case No. CI 12-7872 (Neb. Dist. Ct. Feb. 6, 2015 LIA Order; Jan. 5, 2016 FELA Order; Jan. 5, 2016 Dismissal) (An appeal is pending.)