The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
Plaintiff Robby Maples ("Plaintiff Maples") filed this premises liability action against Seiler Block ("Defendant Seiler Block") under the common law of Tennessee, pursuant to 28 U.S.C. § 1367. Maples has also filed suit against Norfolk Southern Railway Company ("Defendant NSRC") under the Federal Employers' Liability Act. 45 U.S.C. §§ 51-60. He seeks to recover for injuries incurred while working for Defendant NSRC as a conductor on Defendant Seiler Block's property [Doc. 1]. The case is before the Court on Plaintiff Maples' Motion for Partial Summary Judgment on Plaintiff's Premises Liability Claim Against Seiler Block Co., Inc. [Doc. 22]. Plaintiff Maples argues that Defendant Seiler Block violated Tennessee's "Side Clearances" statute, Tenn. Code Ann. § 65-6-204(1), and is entitled to judgment as a matter of law on both the duty and breach elements of his negligence claim against Defendant Seiler Block because this violation constitutes negligence per se. In their responses, Defendants Seiler Block and NSRC argue that partial summary judgment is not appropriate for only a portion of a claim, particularly because there remains substantial controversy as to proximate causation [Docs. 29, 32]. Plaintiff Maples replies that Defendant Seiler Block's response to the motion establishes that the wall was the proximate cause of his injuries and that this Court may consider the motion as ripe for consideration of complete summary judgment as to the premises liability claim against Defendant Seiler Block [Doc. 34].
The Court has carefully considered the parties' briefs [Docs. 22, 30, 32, 34] and supporting materials. For the reasons set forth herein, the Court will deny plaintiff's motion for partial summary judgment.
On November 21, 2005, Plaintiff Maples was injured while working for Defendant NSRC as a conductor on the property of Defendant Seiler Block located in Sweetwater, Tennessee [Doc. 31-2, pp.47].*fn1 While riding on the side of a railcar, Plaintiff Maples claims that his lower body hit Defendant Seiler Block's retaining wall running perpendicular to the railroad tracks. There were approximately 74.25 inches of distance between the centerline of the railroad track and the retaining wall [Doc. 31-6]. The clearance between the railcar and the retaining wall was approximately 11 inches [Id.]. Plaintiff Maples claims that there were no warning signs about the close clearance of the wall prior to the accident [Doc. 31-2, pp. 94-95].
Defendants NSRC and Seiler Block contend that Plaintiff Maples placed a protruding metal bar on the outboard steps of the railcar and straddled the bar while riding on the railcar [Docs. 30, 32]. They claim that this metal bar hit the retaining wall and caused Plaintiff Maples to fall [Id., Doc. 31-6]. While the bar was straight prior to the accident, it was bent immediately after the accident [Doc. 31-4, pp.26-27]. Additionally, Plaintiff Maples rode on the side of the railcar allegedly in contravention of GR-13(a) and GR-15 [Doc. 31-2, pp. 65-66]. GR-13(a) provides:
Employees must not: (a) Ride on close-clearance side, between, or on leading end of equipment moving adjacent to platform, building, or close-clearance structure. They must not stand between moving equipment and adjacent platform, building, or close-clearance structure.
[Doc. 29-5]. GR-15 provides that "[e]mployees riding side of moving equipment must maintain lookout in the direction of movement and must frequently look back" [Doc. 29-5]. Plaintiff Maples had worked as a conductor on Defendant Seiler Block's property previously, including on one occasion a few days before the accident [Doc. 31-2, p. 47].
Plaintiff Maples filed suit against Defendants NSRC and Seiler Block in this Court on September 1, 2006 seeking damages as a result of this accident [Doc. 1]. Defendants NSRC and Seiler Block both answered Plaintiff Maples' complaint on November 22, 2006 [Docs. 11, 12].
Under Rule 56(d), the court, on a motion for partial summary judgment, "shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted." Fed. R. Civ. P. 56(d). In making this determination regarding material facts, the court must examine the pleadings and other evidence. Fed. R. Civ. P. 56(d); See also Griffin v. Griffin, 327 U.S. 220, 225-26 (1947). In order for the summary judgment procedure to be properly followed, "it becomes necessary to determine what facts appear without substantial controversy, and in light of those facts to direct such further proceedings in the action as are just." Griffin, 327 U.S. at 226.
Notably, "the burden of persuasion on a moving party by Rule 56 is a stringent one." Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable jury could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. ...