Rita Guerrero, Individually and as the Special Administrator of the Estate of Celso N. Guerrero v. BNSF Railway Company

Under the provisions of the Federal Employers’ Liability Act, 45 U.S.C. sec 51 et seq., Petitioner, Rita Guerrero, filed suit against her husband’s employer, BNSF Railway Company, to recover damages arising from the death of her husband in a motor vehicle collision which occurred while he was on duty, responding to a Call by his supervisor to report for work to clear switching equipment during a severe snowstorm. On Respondent’s Motion For Summary Judgment, the District Court granted summary judgment on the sole ground that there was not sufficient evidence to raise a question of fact whether decedent was within the scope of his employment at the time of the collision. (App. B, 14a). On appeal, the Seventh Circuit Court of Appeals found there was evidence from which a jury could conclude decedent was within the scope of his employment, and thereby covered by FELA, but affirmed summary judgment in favor of BNSF on an alternative ground asserted by Respondent, not considered by the District Court, that there was insufficient evidence to raise a jury question whether BNSF was guilty of negligence which contributed to its employee’s death. (App. A, 1a). The questions presented for review are: 1. Whether the decision by the Seventh Circuit panel conflicts with provisions of the Federal Employers’ Liability Act, and the uniform precedents of this Court, providing Petitioner the Seventh Amendment right to a jury trial, when the evidence shows that decedent was on duty, “under pay,” subject to control by his supervisor, and responding to his supervisor’s direction to report for work to clear switches during a severe snow storm, in order to maintain interstate rail service.