Noelle L. Schubert

Representative Cases:

Loos v. BNSF Ry. Co., No. 13-CV-3373 PAM/FLN, 2015 WL 3970169 (D. Minn. June 30, 2015)

• The Federal District Court of Minnesota granted BNSF’s motion for summary judgment, dismissing the plaintiff’s unlawful retaliation claims under § 20109 of the Federal Railroad Safety Act.  
• The Court determined that, although the plaintiff engaged in protected activities, including reporting a work injury, following a treatment plan, participating in a safety committee, and testifying in a co-worker’s retaliation lawsuit, BNSF lawfully dismissed him for repeated attendance violations.  
• The Court further determined that BNSF uniformly enforced its attendance policies against five similarly situated employees, none of whom engaged in the same protected activities.  
• The Court held that the plaintiff did not present evidence showing that his alleged protected activities were contributing factors to his discharge.

Poole v. Canadian Pacific, No. 27-CV-13-22086 (Hennepin Cty. Dist. Ct., Jan. 15, 2015)

• Defense verdict.  
• The plaintiff worked as a signal maintainer for Canadian Pacific and alleged negligence under the Federal Employers Liability Act (FELA) for an injury occurring when a section foreman hit him over the hard hat with a shovel.  
• The plaintiff claimed that he sustained a mild traumatic brain injury and permanent neck injury and could not return to work.    
• He alleged Canadian Pacific was vicariously liable for the section foreman’s conduct because the section foreman acted carelessly in performing his work activities with the shovel, and because the altercation concerned a dispute over work procedures.  
• The jury determined that the section foreman’s act of swinging the shovel was horseplay and therefore outside of the scope of his employment with Canadian Pacific.

Houle v. BNSF Ry. Co., No. 27-CV-2013-002711 (Hennepin Cty. Dist. Ct., Feb. 10, 2014)

• Defense verdict.  
• The plaintiff worked as a maintenance-of-way laborer for BNSF and alleged negligence under the Federal Employers Liability Act (FELA) for injuries occurring while using a sledge hammer to place a metal tie clip into a joint, when the clip flew up and struck him in the face, resulting in two nose surgeries, and an alleged loss of smell.  
• The plaintiff argued that BNSF failed to adopt and enforce proper safety methods to prevent the injuries, notably that BNSF should have required him to wear a face mask to protect him from flying metal tie clips.  
• The jury determined that BNSF was not negligent under the FELA and awarded zero damages.

Hinds, et al. v. BNSF Ry. Co., No. 69DU-CV-11-1663, (St. Louis Cty. Dist. Ct. Aug. 2, 2013)

• Summary judgment granted.  
• Two bicyclists were injured in separate incidents while pedal biking across a dormant railroad track on Railroad Street in Duluth, Minnesota.  
• The track was curved, so it was not perpendicular or parallel to the street where traffic crossed.  
• Both plaintiffs fell from their bikes when the front wheel hit the track and caught in the flange (track gutter).  
• The plaintiffs argued that either the angle of the track or the width of the flange caused them to fall.  
• The Court granted summary judgment to BNSF, finding that the plaintiffs failed to establish that BNSF owned the railroad track and that the two-year statute of limitations for improvements to real property barred their negligence claims.

Cramer v. BNSF Ry. Co., No. 27-CV-12-9635 (Hennepin Cty. Dist. Ct., July 3, 2013)

• Partial summary judgment granted.  
• An engineer slipped and fell on an asphalt walkway while engaged in a pre-departure inspection of a locomotive parked on a storage track at BNSF’s Northtown Terminal.  
• The Court dismissed the plaintiff’s strict liability claim, finding that the locomotive was not “in use” under the Locomotive Inspection Act (LIA) because it was under blue flag protection while parked on the storage track, the engineer was engaged in a pre-departure inspection at the time of the incident, there were several tasks that needed completion prior to getting permission to move the locomotive, and the diesel pit foreman and hump tower had not yet given permission for the locomotive to leave the storage track.  
• The Court examined the purpose of the “in use” requirement, and held that because BNSF did not yet have a full opportunity to inspect the locomotive for defects, strict liability could not attach because of an LIA violation.  

Nygaard v. BNSF Ry. Co., No. A12-1566, 2013 WL 2460198 (Minn. Ct. App. June 10, 2013)

• The Minnesota Court of Appeals affirmed partial summary judgment for BNSF, dismissing the plaintiff’s strict liability claim based on an alleged violation of the federal airbrake provisions of the Federal Safety Appliance Act (FSAA).  
• The plaintiff’s job duties as a switchman/brakeman for BNSF involved assembling trains, which required connecting and testing air brake hoses between rail cars.  
• He injured his knee while kneeling down to replace an air hose connecting two rail cars that were parked on a yard track.  
• The Court determined that the rail cars were not yet assembled into a train as required under the federal airbrake provisions for strict liability to attach.  
• The Court further determined that even if the rail cars were part of a train, they were not “in use” under the FSAA since they were under repair and secured from movement.

Dykhoff v. Xcel Energy, 840 N.W.2d 821 (Minn. 2013)

• The Minnesota Supreme Court ruled in favor of Xcel Energy in finding that the employee’s slip and fall injury did not arise out of her employment under the Minnesota Workers’ Compensation Act.  
• The employee fell while walking on a terrazzo floor in the hallway of Xcel’s offices when attending a required training session, injuring her knee.  
• She did not trip on anything.  There was no explanation for the fall.  
• The Supreme Court reversed the ruling of the Workers’ Compensation Court of Appeals, declaring that the “increased risk test” applies when determining whether an injury arises out of employment.  
• The employee failed to establish that “a risk related to her work activity…heightened the likelihood of an injury beyond the level of risk experienced by the general public.” 

Halvorson v. BNSF Ry. Co., No. 03-CV-10-2217 (Becker Cty. Dist. Ct., Aug. 29, 2012)

• Partial summary judgment granted.  
• The plaintiff injured his low back while tying a handbrake and alleged negligence against BNSF under the FELA and strict liability for violating the Federal Safety Appliance Act (FSAA).  
• The Court found that the plaintiff did not present evidence to establish that BNSF was negligent in maintaining or inspecting the handbrake or that BNSF was negligent in adopting or enforcing handbrake tying procedures.  
• The plaintiff could not recall anything unusual about the handbrake’s operation, but assumed something was wrong with it because of his injury.  
• The Court held that “[t]he fact that an injury occurred does not alone justify a finding of negligence.”  The Court also held that the plaintiff failed to establish that the handbrake operated inefficiently and therefore BNSF did not violate the FSAA.  

Frandsen v. Ford Motor Co., 801 N.W.2d 177 (Minn. 2011)

• Amicus brief on behalf of the Minnesota Self-Insurers’ Association.
• The Minnesota Supreme Court ruled in favor of Ford Motor Company in finding that the company did not waive the statutory retirement presumption that an employee’s permanent total disability benefits shall cease at age 67.  
• The Court reversed the Workers’ Compensation Court of Appeals determination that Ford Motor Company waived its right to discontinue permanent total disability benefits because it failed to expressly reserve its right in the stipulation for settlement.  
• The Court found no evidence that Ford Motor Company intended to continue paying the employee permanent total disability benefits beyond age 67.  
• The Court further determined that the settlement agreement did not contain any language demonstrating that Ford Motor Company intended to waive the statutory retirement presumption.