Schaefer v. Union Pacific ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 26 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL R. SCHAEFER,
Plaintiff-Appellant,
v. No. 98-8066
(D.C. No. 97-CV-207-J)
UNION PACIFIC RAILROAD (D. Wyo.)
COMPANY, a Utah corporation,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA , BARRETT , and BRORBY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Michael R. Schaefer appeals from an order of the district court
granting defendant ’s motion for summary judgment. We affirm.
Mr. Schaefer was employed by defendant for twenty-five years as a
signalman. In 1995, he began experiencing shoulder pain. He was diagnosed
with glenohumeral arthritis secondary to hypoplastic glenoids, a congenital
abnormality which prevented him from continuing to work. He applied for and
received a disability award from the Railroad Retirement Board.
Mr. Schaefer then filed this action pursuit to the Federal Employer’s
Liability Act, 45 U.S.C. §§ 51-60 (FELA), alleging negligence by defendant
because it had provided unsafe working conditions. Mr. Schaefer alleged
defendant should have provided proper, suitable, and sufficient tools, machinery
and equipment, and adequate manpower. He also contended defendant had not
provided proper supervision and instruction or reasonably safe procedures; had
failed to warn him of potentially dangerous conditions; and was otherwise
negligent, careless and inattentive to safety issues.
The district court granted defendant ’s motion for summary judgment
holding that Mr. Schaefer had presented no evidence that defendant could have
foreseen the harm that resulted to him. The court concluded that Mr. Schaefer
had not met his obligation to set forth specific facts showing that defendant
should have known that he was at risk for developing the injury he experienced.
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On appeal, Mr. Schaefer argues that because he had foreseen the dangers
of his job and had warned his supervisors about them, his injury was foreseeable.
Mr. Schaefer also asserts defendant should be liable because FELA was enacted
to liberally permit recovery for injured workers thus requiring that he present only
slight evidence of potential harm, a standard he met.
“We review the entry of summary judgment de novo, drawing all
reasonable inferences in favor of the nonmovants.” Hulsey v. Kmart, Inc., 43
F.3d 555, 557 (10th Cir. 1994). The moving party must show there is no genuine
issue as to any material fact and it is entitled to judgment as a matter of law. See
id. The nonmovant must establish, at a minimum, an inference that each element
essential to the case is present. See id.FELA was enacted to supplant the common-law duty of the master to his
servant with a duty imposing liability for any injury or death which occurs at
work and which is due in any manner to the employer’s negligence. See Summers
v. Missouri Pac. R.R. Sys. , 132 F.3d 599, 607 (10th Cir. 19 97); see also 45
U.S.C. § 51. 1 Therefore, in FELA cases, the issue before the court is “‘narrowly
1
Every common carrier by railroad . . . shall be liable in
damages to any person suffering injury while he is employed by such
carrier . . . for such injury . . . resulting in whole or in part from the
negligence of any of the officers, agents, or employees of such
carrier, or by reason of any defect or insufficiency, due to its
negligence, in its cars, engines, appliances, machinery, . . . or other
(continued...)
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limited to the single inquiry [of] whether . . . the conclusion may be drawn that
negligence of the employer played any part at all in the injury or death.’”
Summers, 132 F.3d at 606 (quoting Rogers v. Missouri Pacific R.R. , 352 U.S.
500, 506-08 (1957)). Thus, the FELA plaintiff must prove “the common law
elements of negligence, including duty, breach, foreseeability, and causation.”
Williams v. National R.R. Passenger Corp. , 161 F.3d 1059, 1062 (7th Cir. 1998);
see also Gallick v. Baltimore & O. R.R. , 372 U.S. 108, 117 (1963) (showing that
injury was reasonably foreseeable is “essential ingredient” for establishing
negligence under FELA). The “employer is not liable if it has no reasonable way
of knowing that a potential hazard exists.” Williams, 161 F.3d at 1062 (citing
cases).
Mr. Schaefer contends he has met this requirement because he had
informed his supervisors that his job had the potential for injury. However, he
has not proved that defendant knew or should have known of “conditions which
created a likelihood that petitioner, in performing the duties required of him,
would suffer just such an injury as he did .” Rogers , 352 U.S. at 503 (footnote
omitted) (emphasis added); see also Ellis v. Union Pac. R.R. , 329 U.S. 649, 653
1
(...continued)
equipment.
45 U.S.C. § 51-4-
(1947) (FELA liability will not be imposed based solely on fact that injury
occurred as FELA “does not make the employee the insurer of” its employees’
safety at work); Kuberski v. New York Cent. R.R. , 359 F.2d 90, 93 (2d Cir. 1966)
(fact that injury occurred cannot alone provide proof of negligence on part of
defendant) .
Mr. Schaefer did notify his supervisor that he feared he could be injured
because he did not have the proper equipment and he needed more people to assist
him. He complained that the tools were unsafe and that the materials were too
heavy to carry. These complaints relate to unsafe working conditions. He did not
notify his employer that any of his duties were causing him pain in his shoulders.
He has failed to show that defendant should have foreseen that he would have a
disabling shoulder condition caused, in part, by his routine duties of heavy lifting
and extreme stretching.
The judgment of the United States District Court for the District of
Wyoming is AFFIRMED.
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Entered for the Court
James E. Barrett
Senior Circuit Judge
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