United States District Court, E.D. Washington
EDWARD MC ELMURRY and EVA MC ELMURRY, INDIVIDUALLY and the marital community thereof, Plaintiffs,
RUSSELL INGEBRITSON and JANE DOE INGEBRITSON INDIVIDUALLY, and the marital community thereof and AGENTS/ OWNERS OF INGEBRITSON and ASSOCIATES, A MINNESOTA ENITY, Defendants.
ORDER DENYING PLAINTIFFS' MOTION FOR
Stanley A. Bastian, United States District Judge.
the Court is Plaintiffs' Motion for Reconsideration 1)
Relief Regarding Failure to Rule on Absence of Mesh Netting
in Vehicle; and 2) Proximate Cause, ECF No. 49. Plaintiffs
ask the Court to reconsider its Order Denying Plaintiffs'
Motion for Summary Judgment, ECF No. 47. The motion was heard
without oral argument. For the reasons stated here,
Plaintiffs' motion is denied.
November 13, 2017, the Court entered an Order denying
Plaintiffs' Motion for Summary Judgment, ECF No. 20,
because genuine issues of material fact existed. ECF No. 47.
Plaintiffs now ask the Court to reconsider its ruling and
hold as a matter of law that BNSF's failure to install
mesh netting in the car Plaintiff was driving when he
sustained an injury amounts to negligence under the Federal
Employers Liability Act (“FELA”), 45 U.S.C.
§ 51, et seq. Plaintiffs contend that in its
Order, the Court failed to rule on the issue of the absence
of mesh netting to secure tools inside the vehicle.
Specifically, Plaintiffs argue that because Defendants failed
to refute their proffered evidence on the issue, they are
entitled to judgment as a matter of law. Plaintiffs also
contend that the Court erred by finding that Plaintiffs have
not demonstrated that the absence of the mesh netting was the
“proximate cause” of Mr. McElmurry's
may ask the court to reconsider and amend a previous order.
Fed R. Civ. P. 59(e) offers “an extraordinary remedy,
to be used sparingly in the interests of finality and
conservation of judicial resources.” Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). A Rule
59(e) motion may be granted when: (1) there is an intervening
change in controlling law; (2) the moving party presents
newly discovered or previously unavailable evidence; and (3)
the motion is necessary to correct manifest errors of law or
fact upon which the judgment is based. Turner v.
Burlington N. Santa Fe R. Co., 338 F.3d 1058, 1063 (9th
Order Denying Plaintiffs' Motion for Summary Judgment,
ECF No. 47, the Court noted that “Defendant has not
shown that BNSF's failure to install reflective tape and
metal barrier were the proximate cause of his
injuries.” Id. (emphasis added). The Court
further noted that Plaintiffs' own expert did not opine
that Plaintiffs would succeed on their legal malpractice
claim. William Schroeder opined that “BNSF's
failure to provide luggage restraints as reflected in
McElmurry's declaration, in my opinion creates a jury
question as to whether BNSF's failure to provide the
luggage restraints contributed in any way, however slight, to
Mr. McElmurry's injury.” ECF No. 23. Plaintiffs
argue that because Defendants did not provide any evidence to
refute Mr. Schroeder's opinion, they are entitled to
judgment as a matter of law. However, Mr. Schroeder's
opinion alone does not entitle Plaintiffs to summary judgment
on the issue of whether failure to install mesh netting in
the vehicle amounted to negligence; only that, perhaps,
Plaintiffs will survive a defense motion for summary
judgment. Plaintiffs have offered no evidence that BNSF had a
duty to install the mesh netting nor that the failure to do
so contributed in any way to Mr. McElmurry's injuries.
also take issue with the Court's use of the word
“proximate cause” in relation to a FELA claim.
However, in its Order the Court noted that:
Under FELA, a railroad is liable in damages to any person it
employs for such injury or death resulting in whole or in
part from the negligence of any of the officers, agents, or
employees of such carrier. 45 U.S.C. § 51. The FELA
standard “is simply whether the proof justify with
reason the conclusion that employer negligence played any
part, even the slightest, in producing the injury or death
for which damages are sought.” CSX Transp., Inc. v.
McBride, 564 U.S. 685, 692 (2011).
ECF No. 47. The Court cited the correct standard in
determining that Plaintiffs have not demonstrated that Mr.
McElmurry was injured by BNSF's negligence, however
slight. Although the use of the words “proximate
cause” may have confused the parties, no manifest error
was committed. Since Plaintiffs did not prove causation under
the FELA standard, their motion for summary judgment was
denied. Because Plaintiffs have not shown manifest errors of
law or fact upon which the judgment is based exist, their
motion for reconsideration is denied.
IT IS ORDERED:
1. Plaintiffs' Motion for Reconsideration 1) Relief
Regarding Failure to Rule on Absence of Mesh Netting in
Vehicle; and 2) Proximate Cause, ECF No. 49, is
IS SO ORDERED. The District Court Clerk is hereby
directed to enter this Order and ...