Douglas Williams v. Grand Trunk Western Railroad , 352 F. App'x 13 ( 2009 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 09a0728n.06
    No. 09-1017                                  FILED
    Nov 06, 2009
    UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
    FOR THE SIXTH CIRCUIT
    DOUGLAS WILLIAMS,                                        )
    )
    Plaintiff-Appellant,                              )       ON APPEAL FROM THE
    )       UNITED STATES DISTRICT
    v.                                        )       COURT FOR THE EASTERN
    )       DISTRICT OF MICHIGAN
    GRAND TRUNK             WESTERN        RAILROAD,         )
    INCORPORATED,                                            )
    )
    Defendant-Appellee.                               )
    )
    BEFORE: MARTIN, ROGERS, and COOK, Circuit Judges.
    ROGERS, Circuit Judge. Plaintiff, a railroad worker who was injured when he slipped on
    ice and snow in the course of his duties, sued his employer under the Federal Employers’ Liability
    Act. He alleges that the employer was negligent because it did not remove snow from the area in
    which he was working and because malfunctioning equipment contributed to his injury. Plaintiff
    has not presented sufficient evidence of negligence regarding either snow-removal policies or the
    allegedly defective equipment. He has also failed to present sufficient evidence that the defendant
    had notice of any specific dangerous condition or of any equipment failure. We therefore affirm the
    district court’s grant of summary judgment to defendant.
    BACKGROUND
    In January of 2005, plaintiff Douglas Williams was an employee of Grand Trunk Western
    Railway (Grand Trunk). On January 8, Williams was assigned to drive an engine from Flat Rock
    No. 09-1017
    Williams v. Grand Trunk W. R.R.
    Yard to Stanley Yard in Wallbridge, Ohio, connect an engine to three other engines there, and use
    the four connected engines to take a train back to Flat Rock Yard. According to Williams, it had
    snowed that night, and there was ice on top of snow in Stanley Yard. Connecting the engines
    required Williams to stand on the railroad track bed between the two engines and to plug a large
    electrical cable similar to an extension cord, called an “MU” cable, originating from one engine into
    the other engine. The MU cables are large—weighing approximately fifteen to twenty pounds—and
    to plug them in, one must open a spring-loaded cover and then connect the cord to the plug beneath
    the cover. Williams testified that on January 8, the spring-loaded cover was not functioning on one
    of the plugs, such that the plug was full of snow, and he had to remove the snow before plugging in
    the MU cable. He testified that, after removing the snow, “as [he] was trying to push this MU Cable
    into the receiving receptacle, on the third locomotive . . . [he] slipped.” Williams then steadied his
    feet, dug more snow out of the receptacle, and successfully connected the MU cable. Williams
    alleges that his slip caused him lower back injuries that have prevented him from returning to work
    since January 28, 2005.
    Stanley Yard is not owned by defendant Grand Trunk, but rather by CSX Transportation.
    Evidence regarding the snow-removal and related policies at Stanley Yard comes from the
    depositions of two CSX employees, Arthur Maust and Eugene Payne. Maust testified that CSX
    procedures in Stanley Yard required snow removal from the roadways and the switching leads, as
    needed. He stated that CSX did not regularly remove snow from the tracks or nearby areas, but that
    employees do walk in these areas. Maust did not believe that removing snow from such areas was
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    No. 09-1017
    Williams v. Grand Trunk W. R.R.
    reasonable or necessary. He further testified that railroad employees working in Stanley Yard were
    provided with radios and nonslip footwear, and that if an employee noticed an unsafe condition, the
    employee could radio track department personnel who would apply salt and gravel to the slippery
    area as necessary. Williams was not wearing his rubber boots and did not advise anyone regarding
    the icy ground conditions or the snow-filled cover. Payne testified that it was not unusual for there
    to be snow on the ground in January, and that when there was snow, CSX removed the snow from
    the roadways and the switches. For the remainder of the rail yard, employees were provided with
    non-slip footwear. Payne did not recall any complaints or any problems related to employees
    walking on snow, nor had he ever seen snow in an MU box or heard complaints regarding such a
    problem.
    Williams filed suit against Grand Trunk in district court on April 7, 2007, pursuant to the
    Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq. Grand Trunk moved for summary
    judgment, and on December 10, 2008, the district court issued a written order granting the motion,
    holding that “(1) Defendant was not negligent; and (2) Defendant had no notice of any unsafe
    condition claimed by plaintiff.” Williams timely appealed on January 5, 2009.
    ANALYSIS
    A.     Snow Removal
    Williams’s snow-removal claim could be construed in two ways: as arguing that CSX had
    inadequate general policies, or as arguing the CSX did not respond reasonably to a specific
    dangerous condition where Williams was working. Construed either way, the claim fails.
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    No. 09-1017
    Williams v. Grand Trunk W. R.R.
    To the extent that Williams argues the inadequacy of CSX snow-removal policies, he has
    failed to create a genuine issue of material fact with respect to negligence claim under FELA.1 FELA
    provides that “a railroad has a duty to provide its employees with a reasonably safe workplace; this
    does not mean that a railroad has the duty to eliminate all workplace dangers, but only the duty of
    exercising reasonable care to that end.” Van Gorder v. Grand Trunk W. R.R., Inc., 
    509 F.3d 265
    ,
    269 (6th Cir. 2007) (internal quotation marks omitted); see also 45 U.S.C. § 51. A railroad breaches
    this duty if it “knew, or by the exercise of due care should have known, that prevalent standards of
    conduct were inadequate to protect [the plaintiff] and similarly situated employees.” Urie v.
    Thompson, 
    337 U.S. 163
    , 178 (1949) (internal quotation marks omitted). CSX employees testified
    that if Williams faced any unsafe conditions at Stanley Yard, he could have radioed track department
    personnel, who would have remedied any such condition. Williams has not provided any evidence
    to suggest that this policy was not in place, or that it would not have been sufficient to protect him
    from any unsafe conditions if he had radioed the track department. CSX trainmaster Payne testified
    that he did not recall any complaints about snow buildup or bad walking conditions around the time
    that Williams was injured, and Williams did not produce other evidence suggesting that CSX’s
    snow-removal procedures were inadequate to protect the employees working in Stanley Yard. Like
    the plaintiff in Van Gorder, Williams has “provided no specific information to explain why [the
    1
    Grand Trunk is responsible for any negligence at the CSX yard because, “[a]s the Supreme
    Court and this circuit have recognized, a third party’s negligence in providing a safe workplace for
    an employer’s workers may be imputed to the employer where that third party has a contractual
    relationship with the employer and the employee is acting in the course of her employment on the
    third party’s premises.” Rannals v. Diamond Jo Casino, 
    265 F.3d 442
    , 450 (6th Cir. 2001).
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    No. 09-1017
    Williams v. Grand Trunk W. R.R.
    defendant’s conduct] was not 
    reasonable.” 509 F.3d at 270
    . We have also held than an expert’s
    report was not sufficient to create a genuine issue of material fact where the report was silent on
    “what type of inspection . . . would have been ‘adequate.’” Borger v. CSX Transp., Inc., 
    571 F.3d 559
    , 567 (6th Cir. 2009). Williams has thus failed to provide sufficient evidence for a jury to find
    in his favor. See Van 
    Gorder, 509 F.3d at 268
    (citing Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    ,
    252 (1986)) (summary judgment standard).
    The present case is distinguishable from cases where the defendant failed to remove snow
    from driveways or concrete work areas. See, e.g., Rannals v. Diamond Jo Casino, 
    265 F.3d 442
    , 446
    (6th Cir. 2001);2 McDonald v. Ne. Ill. Reg’l, 
    249 F. Supp. 2d 1051
    , 1052 (N.D. Ill. 2003). CSX
    employees testified that they did, in fact, remove snow from roadways, and they outlined a
    reasonable procedure for dealing with snow-related dangers in the rest of Stanley Yard. When
    Williams slipped, he was standing astride a railroad track, on one stretch of the approximately 30
    to 35 miles of track within Stanley Yard. While the simple fact that an employer failed to remove
    snow and ice from designated walkways or paved roadways might raise a triable issue of negligence,
    the failure of a railroad to remove snow or ice from an entire rail yard does not raise such an issue,
    at least where the railroad has in place policies to remedy any specific dangerous condition of which
    2
    Rannals arose under the Jones Act, 46 U.S.C. § 
    30104. 265 F.3d at 445
    . The standards for
    recovery under the Jones Act and FELA are the same, as “the Jones Act makes applicable to seamen
    the substantive recovery provisions of the older FELA.” Miles v. Apex Marine Corp., 
    498 U.S. 19
    ,
    32 (1990).
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    No. 09-1017
    Williams v. Grand Trunk W. R.R.
    they are given notice. Williams has thus failed to create a genuine issue of material fact with respect
    to a negligence claim regarding the snow-removal procedures at Stanley Yard.
    If, instead, Williams’s claim is construed as arguing negligence with respect to a location-
    specific dangerous condition, he has failed to produce sufficient evidence that CSX had notice of that
    condition. A railroad’s failure to cure specific dangerous conditions, including failures to remedy
    conditions created by winter weather, may constitute negligence. See, e.g., Barrett v. Toledo, Peoria
    & W. R.R. Co., 
    334 F.2d 803
    , 803-04 (7th Cir. 1964). A defendant, however, cannot be held
    negligent “absent proof that such defect was known, or should or could have been known, by
    defendant, with opportunity to correct it.” Miller v. Cincinnati, New Orleans & Tex. Pac. Ry. Co.,
    
    317 F.2d 693
    , 695 (6th Cir. 1963). Williams has not produced sufficient evidence such that a
    reasonable jury could conclude that CSX knew or had reason to know of the condition of the specific
    track on which he was working. Williams suggests that notice of this type can be inferred from the
    fact that CSX had an approximately ten-foot tower that could see most of the track where the
    defendant was working. Williams, however, has produced no evidence that anyone was in the tower
    at the relevant time, that anyone had observed the relevant track, or that any dangerous condition
    would have been visible from the tower. Nor had anyone complained about this location or any
    other location as being particularly slippery. Indeed, the only person known to have observed the
    track was Williams, and he did not report any dangerous conditions to CSX. No reasonable jury
    could conclude from these facts that CSX knew or had reason to know of any location-specific,
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    No. 09-1017
    Williams v. Grand Trunk W. R.R.
    dangerous condition. Grand Trunk is therefore entitled to summary judgment under either reading
    of Williams’s snow-removal allegations.
    B.     The MU Receptacle
    Williams has also not provided sufficient evidence of either negligence or notice regarding
    the allegedly defective MU receptacle. Williams’s evidence regarding negligence is not sufficient
    because he has not presented any evidence linking the allegedly snow-filled MU receptacle to any
    action by the defendant. He testified that he “had no idea of when [the MU] lid was ever opened or
    whoever handled that locomotive.” Without additional evidence, no reasonable jury could find that
    the defendant’s negligence was responsible for the spring-loaded receptacle’s becoming snow-filled.3
    Further, Williams has not produced any direct evidence of notice and, from all accounts, the
    malfunctioning MU receptacle presented a previously unknown problem. In Van Gorder, this court
    affirmed the grant of summary judgment in part because no witness had ever encountered the
    relevant problem before the incident that caused the plaintiff’s 
    injury. 509 F.3d at 271
    . This court
    concluded that the defendant had no reason to know that such a defect existed or that it might cause
    injury. 
    Id. Similarly, no
    witnesses in this case had ever seen an MU receptacle become jammed
    open by snow, and thus there is no basis on which a jury could conclude that Grand Trunk knew or
    should have known that this was a danger. As with the slippery track, the only person who ever
    3
    The doctrine of res ipsa loquitur applies in FELA cases, Chesapeake & O. Ry. Co. v. Smith,
    
    42 F.2d 111
    , 113 (6th Cir. 1930), but Williams did not raise this issue on appeal. Further, this
    doctrine is not applicable here because Williams has not presented sufficient evidence to show that
    it was improbable that there was any cause other than the negligence of the employer or that this is
    the kind of accident that does not ordinarily occur absent negligence by the employer. See 
    id. -7- No.
    09-1017
    Williams v. Grand Trunk W. R.R.
    observed the allegedly malfunctioning equipment was Williams, and he did not notify anyone of this
    problem. Williams has thus failed to produce sufficient evidence that any “defect was known, or
    should or could have been known, by defendant, with opportunity to correct it.” 
    Miller, 317 F.2d at 695
    .
    CONCLUSION
    For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment for
    the defendant.
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