Lynch v. Northeast Regional Commuter Railroad , 700 F.3d 906 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2173
R ENARDO L. L YNCH,
Plaintiff-Appellant,
v.
N ORTHEAST R EGIONAL C OMMUTER R AILROAD C ORP.,
d/b/a M ETRA /M ETROPOLITAN R AIL,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cv-07276—Elaine E. Bucklo, Judge.
A RGUED M ARCH 29, 2012—D ECIDED O CTOBER 29, 2012
Before K ANNE, R OVNER, and W ILLIAMS, Circuit Judges.
R OVNER, Circuit Judge. On October 8, 2007, Renardo
Lynch was injured while working at a jobsite as a
mechanic for Metropolitan Rail (Metra), when the top
rail of a chain-link fence he was installing fell and struck
him on the back of his neck and shoulders. Lynch filed
a complaint under the Federal Employers’ Liability Act
(FELA) seeking damages against Northeast Regional
2 No. 11-2173
Commuter Railroad Corporation, doing business as
Metra, for the injuries he sustained that day. The district
court granted summary judgment in favor of Metra,
and Lynch appeals.
I.
Lynch was hired by Metra in 1987 to work in the track
department, but moved to the Bridges and Building
(“B & B”) department where he held a number of posi-
tions. At the time of the injury, he was working as a
B & B mechanic. The duties of a mechanic included:
installing fences, doors and windows; painting; brick-
work; installing pedestrian road crossings at depots;
upkeep of depots; and maintaining Metra bridges and
buildings. Although Metra provided training regarding
some of those duties, no training was provided re-
garding the installation of fencing. Mechanics learned
how to install fences from working with peers on
the jobsites.
The installation of fences was a routine part of a me-
chanic’s job in that such work was done several times
per month, and it occurred in distinct phases over
multiple days. In the first stage, a work crew would dig
holes about three feet deep and set vertical fence posts
in cement. Those posts, called terminal or end posts,
measured approximately 3 inches in width. The cement
was then allowed to cure for 1-2 days.
In the next phase, the top rails of the fence were in-
stalled. Those rails were secured to the fence posts by
No. 11-2173 3
means of brackets with attached cups that were tightened
around the fence post. The cups were recessed at least
one and a half inches so the top rail could be placed
in the sleeve of the cup and secured. The top rail was
first cut to the proper dimension to fit from one cup end
to another, and the cups were loosened to position the
top rail in place and then tightened to secure it. Ac-
cording to the deposition testimony of crew members
who regularly installed fencing, once the top rail is
secured and the brackets tightened the top rail should
not be able to slip out of the cups.
After the top rail is installed, the fabric or chain link
is put in place and secured to the skeleton—the rail and
posts. Lynch was engaged in this task at the time of
the injury.
On the day of the incident, Lynch and the other
members of his work crew reported to Metra’s Western
Avenue facility at 6:00 in the morning. The work crew
that day included the foreman Brad Clark, assistant
foreman Trancito Reyes, B & B mechanics Ivory Scott
and Kurtis Otero, and Nathan Fullbright. The foreman
briefed the crew as to their tasks for the day, and
they proceeded to the Western Avenue depot with the
necessary supplies. It is undisputed that the fence
posts had previously been installed at that site, and
the evidence is unclear as to whether the top rails were
in place or whether Lynch’s work crew installed them
that day. Lynch did not believe that he helped install
the top rail that day. The fence was located on a hill,
which was described as steep, and there was a drop in
elevation between the two fence posts.
4 No. 11-2173
At the time of the incident, Lynch and Otero were
installing the fabric or mesh part of the fence and were
on their knees next to each other tightening brackets at
the bottom of the fence post. The top rail fell, hitting
Lynch across the back of his neck and shoulders
and causing him to sprawl “flat face down.” Lynch was
uncertain as to whether he lost consciousness, but he
was dazed. He ended up missing work for approximately
28-30 days following the injury.
Lynch and Otero both maintained that they were not
pulling on any portion of the posts or top rail at the
time the rail dropped, and that they did not believe
any actions on their part contributed to its fall. Metra
has acknowledged that there was nothing Lynch or his
co-workers did to cause the pole to fall. See Metra’s
Rule 56.1 Statement of Uncontested Facts at 3, no. 29.
Metra also admitted that the employees are responsible
for inspecting the work being done. Id. at 4, no. 38.
II.
The district court recognized that under FELA,
45 U.S.C. § 51 et seq., an employee will survive sum-
mary judgment if the evidence justifies with reason
the conclusion that the employer’s negligence played
any part in producing the injury. Dist. Ct. Op. at 4. Ac-
cording to the district court, that means that under
FELA an employer is liable for its negligence even if
the injured worker is even more negligent, but it does
not stand for the proposition that a plaintiff who “fails
to produce even the slightest evidence of negligence”
No. 11-2173 5
is entitled to a jury trial. Id. The court then considered
the evidence produced by Lynch to establish the
elements of negligence. Although Metra had moved
for summary judgment on the basis that Lynch failed to
demonstrate a breach of due care, the court assumed
that Lynch had in fact presented sufficient evidence of
a breach of its duty to provide a reasonably safe work-
place with proper training. Id. at 5-6. Instead, the court
granted summary judgment for Metra on the issue of
causation, holding that Lynch’s theory that the top
rail was cut too short or improperly installed rested
on speculation not facts. Id. at 6. In particular, the court
emphasized the failure of Lynch to introduce evi-
dence of the measurement of the top rail and the
distance between the fence posts, or the grade of the
hill. 1 Id. at 7-8. The court dismissed the testimony of co-
worker Otero that a top rail should not come loose if cut
and secured properly, declaring that Otero was a fact
witness not an expert, and that no expert testimony
was provided. Id. at 7. The court held that the causation
1
Such measurements are too often overlooked. See Coffey
v. Northern Illinois Regional Commuter R.R. Corp. (METRA), 479
F.3d 472, 478 (7th Cir. 2007) (noting the curious and deplorable
aversion of many lawyers to exact measurements). In this
case, however, there is no indication whether the pole was
even available to be measured. The extent of the injury was
not immediately clear, and therefore the pole may not have
been retained. We note that the measurement was not
provided by Metra either, although it potentially could have
eliminated the possibility of worker negligence in cutting it.
6 No. 11-2173
standard under FELA was not so lax as to allow a
plaintiff to proceed on nothing more than rank specula-
tion, and granted summary judgment to Metra on that
basis. Id. at 8.
In addressing the lack of evidence presented by Lynch
regarding causation, the district court noted that it
could be related to the failure of Metra to argue for sum-
mary judgment on that issue:
To be fair, plaintiff’s brevity on this issue is likely
the result of defendant’s curious failure to argue that
it is entitled to summary judgment based on the
absence of any evidence of causation, instead focusing
on the argument that the evidence does not support
a breach of due care.
Id. at 6, n.3. The court nevertheless concluded that
Metra had “carried its initial burden under Rule 56,
by identifying record evidence to support its statement
that ‘it is unknown why the pole fell,’ and is entitled
to summary judgment based on plaintiff’s failure to
dispute that evidence with ‘specific facts showing there
is a genuine issue for trial.’ ” Id.
III.
On appeal, Lynch argues that the district court erred
in granting summary judgment on a basis not asserted
by Metra without providing it an opportunity to respond.
Pursuant to Federal Rule of Civil Procedure 56(a), “a
party may move for summary judgment, identifying
each claim or defense—or the part of each claim or
No. 11-2173 7
defense—on which summary judgment is sought.” In
this case, Metra moved for summary judgment on the
ground that Lynch had failed to demonstrate negligence,
but specifically that he had not demonstrated a breach
of duty because Metra lacked actual or constructive
notice of a defect that caused Lynch’s injuries. The
court chose, however, to grant summary judgment on a
different ground not argued by Metra, that of causation.
Metra does not contend on appeal that it briefed the
causation issue before the district court. Instead, it points
out that under Federal Rule of Civil Procedure 56(f),
a district court may grant summary judgment on a
ground not raised by the moving party. A look at the
actual language of Rule 56(f) clarifies the circumstances
under which the court may so act:
After giving notice and a reasonable time to respond, the
court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party;
or
(3) consider summary judgment on its own after
identifying for the parties material facts that may
not be genuinely in dispute.
[emphasis added]. Rule 56(f) thus allows a court to
grant summary judgment on grounds not raised by a
party only after providing notice and a reasonable time
to respond. There is no indication that such notice and
time to respond was provided in this case. Lynch asserts
on appeal that, given an opportunity to respond, he
8 No. 11-2173
would have presented medical evidence linking his
injury to the impact caused by the top rail. That evidence,
however, would not have addressed the court’s concern
that Lynch had failed to demonstrate that Metra’s
breach of a duty caused the top rail to fall. It is unclear
whether Lynch would have presented evidence relating
to that issue, such that the failure to provide notice and
time to respond would have adversely impacted him.
Ultimately, we need not address this Rule 56(f) issue,
because there was no need for Lynch to provide any
further response; we hold below that the record con-
tains sufficient evidence of causation and therefore
the court improperly granted summary judgment on the
merits.
IV.
FELA was enacted in response to the dangers inherent
in working for the railroad and the high rate of injuries
among railroad employees. See Consolidated Rail Corp. v.
Gottshall, 512 U.S. 532, 542-43 (1994). It establishes a
standard for employer liability that is more lax than
common law negligence standards, and eliminates a
number of traditional defenses such as contributory
negligence, the fellow-servant rule, and assumption of
risk. Williams v. National R.R. Passenger Corp., 161 F.3d
1059, 1061 (7th Cir. 1998); Gottshall, 512 U.S. at 542-43.
Under FELA, railroads are liable if carrier negligence
played any part, even the slightest, in producing the
injury. CSX Transportation, Inc. v. McBride, 131 S. Ct. 2630,
2634 (2011); DeBiasio v. Illinois Central R.R., 52 F.3d 678, 685
No. 11-2173 9
(7th Cir. 1995). A plaintiff’s burden under FELA is thus
significantly lighter than in an ordinary negligence
action. Green v. CSX Transportation, Inc., 414 F.3d 758, 766
(7th Cir. 2005). A jury verdict in a FELA action can be set
aside only if there is a complete absence of probative
facts to support the jury’s conclusion. DeBiasio, 52 F.3d at
685; Hines v. Consolidated Rail Corp., 926 F.2d 262, 268
(3d Cir. 1991) (holding that a “ ‘trial court is justified in
withdrawing . . . issue[s] from the jury’s consideration
only in those extremely rare instances where there is a
zero probability either of employer negligence or that
any such negligence contributed to the injury of an em-
ployee.’ ”).
FELA imposes strict liability on railroad carriers who
violate certain safety statutes, but none of those statutes
are implicated here. See McBride, 131 S. Ct. at 2643 n.12;
McGinn v. Burlington Northern R. Co., 102 F.3d 295, 298-99
(7th Cir. 1996); Granfield v. CSX Transportation, Inc., 597
F.3d 474, 480 (1st Cir. 2010); Phillips v. CSX Transportation,
Inc., 190 F.3d 285, 288 (4th Cir. 1999). Therefore in order
to survive summary judgment, Lynch had to allege evi-
dence creating a genuine issue of fact on the elements of
negligence including duty, breach, foreseeability, and
causation. Green, 414 F.3d at 766. Before the district court,
Metra argued that it was entitled to summary judgment
because Lynch failed to present evidence that Metra
was on notice of any unsafe condition and did not create
a genuine issue of fact that Metra breached its duty to
provide a safe workplace. The district court assumed
that Lynch met the element of breach of duty, but
granted summary judgment on the ground that Lynch
10 No. 11-2173
did not raise a genuine issue of fact as to the element of
causation. On appeal, the only issue presented to us is
whether the district court properly granted summary
judgment based on Lynch’s failure to raise a genuine
issue of fact as to causation. Metra does not argue on
appeal that summary judgment should be upheld based
on other grounds such as duty, breach or foreseeability,
and therefore we can limit our analysis to whether the
district court properly resolved the causation issue.
A.
The district court began by correctly stating that an
employee in a FELA action is “entitled to a jury if ‘the
proofs justify with reason the conclusion that employer
negligence played any part, even the slightest, in producing
the injury,’ ” a standard set forth by the Supreme Court
in Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506
(1957). Dist. Ct. Memorandum Opinion and Order at 4,
quoting Harbin v. Burlington Northern R.R. Co., 921 F.2d
129, 131 (7th Cir. 1990) and Rogers (emphasis in Harbin).
The district court then concluded, however, that “the
import of this principle is merely that under the FELA,
an employer will be liable for its negligence even if the
injured worker was even more negligent,” and declared
that it does not stand for the proposition that a plaintiff
who fails to produce even the slightest evidence of negli-
gence is entitled to proceed to a jury trial. Id. That
characterization of the FELA standard is troublesome.
The Supreme Court in McBride, decided after the dis-
trict court issued its opinion, rejected the notion that
No. 11-2173 11
the “any part . . . in causing the injury” language con-
cerned only division of responsibility among multiple
actors, and not causation generally. 131 S. Ct. at 2638 n.2.
In that case, CSX argued that the relaxed FELA standard
displaced only common law restrictions on recovery
for injuries involving contributory negligence, and did
not address the requisite directness of a cause. Id. at 2637.
The Court held that Rogers announced a general standard
for causation in FELA cases not one applicable exclu-
sively to injuries involving multiple causes. Id. at 2639.
The “in part” language applied as well to the “directness
or foreseeability of the connection between the carrier’s
negligence and the plaintiff’s injury.” Id. Therefore, the
district court erred in stating that the import of
the “in part” standard was merely to hold the carrier
liable in cases of negligence by multiple actors. Rogers
made clear that the common law consideration about
whether a particular cause was “sufficiently substantial”
to constitute a proximate cause was replaced with the
straightforward “any part” language as the “single” inquiry
determining causation in FELA cases. Id. at 2638-39.
Accordingly, the FELA “in part” standard impacts the
causation analysis beyond cases in which the employee
is also negligent. That said, the district court properly
noted that FELA does not render employers strictly
liable for any workplace injury without any showing of
negligence. The relevant inquiry, then, is whether the
evidence here raised a genuine issue of fact that Metra’s
negligent breach of duty was a cause, even in the
slightest, of the injury to Lynch.
12 No. 11-2173
B.
The district court assumed that Lynch had raised a
genuine issue of fact as to Metra’s breach of its duties
under FELA to provide employees a reasonably safe
workplace, safe equipment, proper training, and suitable
methods to perform the assigned work. Lynch alleged
that those duties were breached in three aspects: (1) Metra
failed to provide adequate training in fence installation;
(2) Metra failed to adopt and enforce reasonably safe
work methods and procedures; and (3) Metra failed to
inspect, discover and remedy unsafe conditions. Lynch’s
theory was that the top rail slipped from its cup either
because it was cut too short or not securely tightened,
or because it was not installed in a manner that appro-
priately accounted for the steep grade of the hill.
In the district court, Lynch presented evidence that
the foreman at the worksite had an ongoing obligation
to inspect the work being performed at each phase, and
that in the foreman’s absence the assistant foreman
had that responsibility. At the time of the incident, the
foreman was away from the jobsite acquiring needed
materials, but the assistant foreman, Reyes, was pres-
ent. There was also testimony that crew members indi-
vidually had an obligation to inspect.
In addition, the record contained testimony from
some of the crew members as to the procedures for mea-
suring and cutting the top rail so that it fit snugly, as
deeply-seated into the cups attached to the fence posts
as possible. Scott had worked for 18 or 19 years as
a B & B mechanic at Metra and installed fences regularly
No. 11-2173 13
during that time. He testified that a rail that is cut to
the proper length and tightened in the cup should
not be able to come out of the cup. Otero, who had
11 years of experience working for Metra as a B & B
mechanic, similarly testified that a rail that is cut to
the proper length and secured in the cup should not
be able to fall out. He further opined that the grade of
the hill might have impacted it. He testified that in
installing the mesh on the posts and rails, there was
concern regarding the impact of the grade of the hill, and
that a trench was dug in front of one of the posts in the
area of the accident in order to accommodate for the
impact of the grade of the hill on the ability to properly
secure the mesh to the posts and rail. Finally, Lynch
presented evidence that although workers received
training on a number of mechanic tasks, they received
no formal training for installing fences, although they
engaged in that task on a regular basis. They learned
how to install fences “on the job,” from other crew mem-
bers involved in the installation. Although Otero had
been a mechanic for 11 years, he had never worked on
a fence with an elevation difference like the one
involved here, which he described as at least a 2-3 foot
drop between posts. He received no training on
installing fencing in circumstances such as that one.
That evidence is sufficient to present a genuine issue
of fact concerning the causation issue. From that testi-
mony, a jury could reasonably conclude that the top
rail fell out because it was either cut too short or improp-
erly tightened in the cup by a Metra employee. The
jury could further conclude that the problem would
14 No. 11-2173
have been discovered if a Metra employee had inspected
the top rail after it was installed and before the next
phase, fastening the mesh to the skeleton, was initiated.
Finally, a jury could determine that the failure to pro-
vide training in fence installation left the crew mem-
bers ill-equipped to adjust to non-standard conditions
such as the steep grade of the hill, and that the inability
of the employees to anticipate the impact of that grade
on the rail contributed to the fall.
C.
The district court held that Lynch could not proceed
because those theories were based on nothing more than
rank speculation. The court rejected the testimony of
Otero as unhelpful because he testified both that a top
rail should not come out if cut to the proper length and
that the grade of the hill could have caused it to fall out.
The court then declared that “more importantly,” Otero
was a fact witness not an expert. The court criticized
Lynch for failing to measure the distance between the
posts, the length of the top rail, and the grade of the
hill, and for failing to attempt to recreate the accident
“or otherwise investigate or exclude other possible
causes.” Dist. Ct. Op. at 7. As to Otero’s testimony that
the hill was steep and at least a 15 percent grade, the
court dismissed it as explicitly speculative.
The district court erred in dismissing the testimony
as speculative and demanding direct evidence of the
cause of the fall and exclusion of other possible causes. In
its statement of uncontested facts for the summary judg-
No. 11-2173 15
ment motion, Metra admitted that the crew members
were working on a hill, that it was a warm, clear and
sunny day and lighting was not a problem, that Lynch
was installing the mesh and nothing he did caused the
pole to fall, and that no one slipped or fell causing the
top rail to dislodge. In other words, Metra acknow-
ledged that the top rail did not fall out as a result of
inclement weather or an “act of God,” that Lynch did not
cause it to dislodge in his actions installing the mesh,
and that the rail did not have any apparent design or
manufacturing defect. That leaves the most obvious
cause of the fall—the failure to cut it long enough to
ensure that it remained seated in the cups, or the failure
to securely tighten the cup. Either of those conditions
could be easily ascertained if the rail had been in-
spected prior to proceeding with the next phase of fence
construction—installing the mesh fabric. The testimony
indicated that a properly installed top rail should be
snug, and could move in the cups only slightly; a
person inspecting the top rail could have checked the
amount of movement and the amount of resistance in
its movement, thus determining whether it was properly
seated in the cups.
The district court in effect held that the jury could not
draw the most obvious conclusion as to the cause of the
injury, because there is no direct evidence of that cause
and no expert testimony supporting that conclusion.
That is inconsistent with the consistent holdings of
this and other courts that under FELA, circumstantial
evidence alone can support a jury verdict, and expert
testimony is unnecessary where the matter is within
the realm of lay understanding and common knowledge.
16 No. 11-2173
D.
We consider first the implication that expert testimony
is necessary to survive summary judgment on a FELA
claim. Courts have consistently rejected that position,
holding that expert testimony is not required. For
instance, in Harbin, we considered Harbin’s FELA action
against Burlington Northern Railroad, claiming that
the unsafe work conditions caused his heart attack.
Harbin, 921 F.2d 129. The evidence demonstrated that
the roundhouse in which Harbin worked had no
special ventilation system. Id. at 129-30. Locomotives
left running in the building created clouds of exhaust
fumes. Id. at 130. In addition, once a year Harbin would
clean the inside of the boilers, by scraping the soot off
the inside and blowing it out with an air pressure hose.
Id. at 129-30. That would send additional soot into the
air. Id. The railroad provided Harbin with a mask but
it covered only his mouth and not his nose. Id. at 130.
Harbin provided expert testimony from a doctor that
inhalation of particulate matter could irritate the lungs
and stress the heart, precipitating a heart attack, but did
not provide any expert testimony as to the air quality
or the amount of soot in the roundhouse air. Id.The railroad protested that Harbin’s evidence thus
amounted to nothing more than pure fantasy, containing
“less substance than broth brewed from the bones of
a starved pigeon.” Id. at 131.
The district court in Harbin held there was enough
evidence of causation to go to a jury given the med-
ical expert testimony, but that there was insufficient
No. 11-2173 17
evidence of negligence. Id. The court opined that with-
out knowledge of the precise quantity or composition
of soot in the air, a jury would not be able to assess
the reasonableness of the railroad’s conduct. Id.Although recognizing that expert testimony would
undoubtedly enhance Harbin’s case, we held on appeal
that it was not essential under the regime of FELA. Id. at
131. We held that “[a] long line of FELA cases reiterate
the lesson that the statute vests the jury with broad discre-
tion to engage in common sense inferences regarding
issues of causation and fault.” 921 F.2d at 132, citing
Rogers, 352 U.S. at 510 (noting that the decision must be
left for the jury “in all but the infrequent cases where fair-
minded jurors cannot honestly differ whether fault of
the employer played any part in the employee’s in-
jury”). Accordingly, we held that a jury could
reasonably conclude that the failure to implement a
different cleaning method such as a vacuum rather than
air pressure hose, and the failure to take other pre-
cautions such as more effective face masks, was negli-
gent. Id. at 131-32. We did not require expert testimony re-
garding the efficacy or practicality of such measures in
order to allow the case to proceed to the jury, noting that
“numerous FELA actions have been submitted to a jury
based upon far more tenuous proof—evidence scarcely
more substantial than pigeon bone broth.” Id. at 132.
Similarly, in Ulfik v. Metro-North Commuter R.R.,
77 F.3d 54, 59 (2d Cir. 1996), the court considered
whether expert testimony was necessary to establish
whether exposure to paint fumes on July 15 caused Ulfik’s
18 No. 11-2173
dizziness eight days later on July 23, which was the
only disputed link in the causal chain. The court held
that a jury could properly infer that exposure to paint
fumes caused headaches, nausea and dizziness without
the need for expert testimony. Id. at 59-60. The court
noted that expert testimony may be necessary where
some special expertise is necessary to draw a causal
inference because of its esoteric nature, but that
in general the causal sequence can be inferred from
circumstantial evidence, expert testimony, or common
knowledge. Id. at 60, citing W. Page Keeton et al., Prosser
& Keeton on the Law of Torts, § 41, at 270 (5th ed. 1984);
see also Myers v. Illinois Central R.R. Co., 629 F.3d 639, 643
(7th Cir. 2010) (expert testimony unnecessary in cases
where the layperson can understand what caused the
injury); Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d
Cir. 2004) (in FELA action, expert testimony necessary
only if causal link is beyond the knowledge of the lay
juror, such as the link between exposures to toxins and
squamous cell carcinoma).
The district court thus erred in dismissing Otero’s
testimony as merely a fact witness not an expert. There
was no reason for expert testimony on the easily under-
stood causal connection between improper installation
of a top rail and its subsequent drop to the ground. In
fact, the inference is an easier one to make than the infer-
ences in Ulfik that exposure to paint fumes caused dizzi-
ness eight days later, or the inference in Harbin that the
soot stirred up by the idling locomotives and boiler
cleaning was so significant as to create a safety con-
cern necessitating additional action by the railroad.
No. 11-2173 19
E.
The other basis—and perhaps overriding concern—of
the district court appears to be that Lynch has failed
to present any direct evidence establishing the cause of
the top rail collapse. Courts have repeatedly held, how-
ever, that in FELA cases the element of causation may
be established through circumstantial evidence or
common knowledge, and that direct or expert testimony
is not required. Missouri Pacific R.R. Co. v. Kansas Gas and
Elec. Co., 862 F.2d 796, 800 (10th Cir. 1988) (a case can
rest entirely on circumstantial evidence and still be suf-
ficient to reach the jury under FELA); Gibson v. Elgin,
Joliet & Eastern Ry. Co., 246 F.2d 834, 837 (7th Cir. 1957)
(burden met if proof, though entirely circumstantial,
from which a jury may with reason make the inference).
In fact, in Rogers the Supreme Court declared that
“[c]ircumstantial evidence is not only sufficient, but
may also be more certain, satisfying and persuasive
than direct evidence.” Rogers, 352 U.S. at 508, n.17.
The Supreme Court’s decision in Gallick v. Baltimore and
Ohio R. Co., 372 U.S. 108 (1963), which was recently reaf-
firmed in McBride, is instructive. See McBride, 131 S. Ct. at
2639. Gallick was a spotting crew foreman working on
the railroad’s right of way when he was bitten by an
insect. Gallick, 372 U.S. at 109. In an unfortunate progres-
sion, the wound from the bite became infected, and the
infection spread throughout his body, resulting in the
eventual amputation of both of his legs. Id. None of the
doctors who treated Gallick could explain the etiology
of his condition, but some of them characterized it as
20 No. 11-2173
secondary to an insect bite. Id. at 109-10. Gallick filed suit
against the railroad under FELA, claiming that the
insect bite occurred as he was working near a fetid pool
containing dead and decaying rats and pigeons, which
had existed for many years and of which the railroad
had knowledge. Id. at 100. He argued that the pool of
stagnant water attracted insects and resulted in the
bite and subsequent infection. Id. The appellate court in
the case held that a jury could not reasonably find
liability, because there was no direct evidence that the
insect had any connection with the pool of water or
evidence which would negate alternative possibilities
that the insect “had emanated from ‘the nearby putrid
mouth of the Cuyahoga River, or from the weeds, or
unsanitary places situated on property not owned or
controlled by the railroad.’ ” Id. at 112. The appellate
court concluded that the evidence was merely a series
of guesses and speculations—a chain of causation too
tenuous to support liability. Id.
The Supreme Court reversed that determination,
holding that the appellate court improperly invaded the
function and province of the jury, and that there was
sufficient evidence to warrant the jury’s conclusion
that the injuries were caused by the railroad’s acts or
omissions. Id. at 113. Specifically, the Supreme Court
held that the appellate court erred in requiring either
direct evidence that the insect had a connection to the
fetid pool, or more substantial circumstantial evidence
than that the pool created conditions that furnished an
environment to attract and infect such insects. The Court
noted that in FELA cases, the role of the court is not
No. 11-2173 21
to search the record for conflicting circumstantial
evidence and to take the case from the jury because the
evidence equally supports inconsistent and uncertain
inferences. Instead, it is the function of the jury, not
the court, to select among conflicting inferences and
conclusions.
The Court reached a similar conclusion in Lavender v.
Kurn, 327 U.S. 645, 646 (1946), a FELA case alleging
that a switchtender’s death was attributable to railroad
negligence. The switchtender, Haney, was found uncon-
scious near the track and died as a result of a fractured
skull. Id. at 648 An autopsy revealed an injury to the
back of his head made by a fast moving small round
object. Id. at 648-49. The petitioner’s theory was that
Haney was struck by the end of a mail hook hanging
down loosely on the outside of a mail car on a backing
train. Id. at 649. The petitioner introduced evidence that
the mail hook could have swung out 12 to 14 inches, and
if it so extended and if Haney was standing on top of a
nearby mound of dirt, he could have been struck by
the mail hook. Id. The respondent countered that the
mound was 10 to 15 feet north of the track and there-
fore the hook could not have reached Haney’s head. Id.
at 649-50. Instead, the respondent theorized that Haney
was murdered, and introduced evidence that hoboes
and tramps frequented the area at night and that Haney
carried a pistol to protect himself. Id. at 650. The Court
held that there was sufficient evidence of negligence to
justify submitting the case to the jury. Id. at 652. The
Court held that there was evidence from which it might
be inferred that the mail hook struck Haney. Id. The
22 No. 11-2173
Court acknowledged that there was also evidence in-
dicating that it was physically and mathematically im-
possible for the hook to strike Haney, and that there
were facts from which one could infer that he had
been murdered. Id. But the evidence indicating the hook
could have reached Haney was sufficient to allow the
case to go to the jury. Id. The Court explicitly rejected
the notion that the speculative nature of the inquiry
should prevent submission of the case to the jury:
It is no answer to say that the jury’s verdict involved
speculation and conjecture. Whenever facts are in
dispute or the evidence is such that fair-minded
men may draw different inferences, a measure of
speculation and conjecture is required on the part
of those whose duty it is to settle the dispute by
choosing what seems to them to be the most reason-
able inference. Only when there is a complete ab-
sence of probative facts to support the conclusion
does a reversible error appear.
Id. at 653.
Those cases establish that circumstantial evidence is
sufficient to establish FELA liability, and that a jury
can make reasonable inferences based on that circum-
stantial evidence even where conflicting inferences are
also appropriate and no direct evidence establishes
which inference is correct. See also DeBiasio v. Illinois
Central R.R., 52 F.3d 678, 684 (7th Cir. 1995) (testimony
by worker that, based on his 13 years of experience,
the sequence of events indicated that the cars had made
impact but failed to couple automatically, enough to
No. 11-2173 23
submit case to the jury even though no one witnessed
the actual impact). Mendoza v. Southern Pacific Transporta-
tion Co., 733 F.2d 631, 633 (9th Cir. 1984) (slight evidence
is sufficient in FELA cases to raise a jury question, and
it is only necessary that the conclusion be one that is
not outside the possibility of reason on the facts and
circumstances shown); Gibson, 246 F.2d at 837 (jury
verdicts can be based solely on speculation, conjecture
and possibilities).
F.
Finally, the district court and Metra rely on Coffey
v. Northeast Illinois Regional Commuter R.R. Corp. (METRA),
479 F.3d 472 (7th Cir. 2007) for the assertion that con-
jecture is insufficient to avoid summary judgment, but
that is demonstrably not the holding in Coffey. In fact,
Coffey further reinforces Lynch’s argument that sum-
mary judgment was improperly granted. In Coffey, the
plaintiff, a train engineer, asserted a FELA claim based
on an injury sustained when his head struck a sun visor as
he climbed into the driver’s cab of the train. Id. at 474.
Coffey hypothesized that the bolts fastening the visor
to the wall had been loosened by the vibration of the
train, causing the visor to descend halfway so that it
was pointing at the driver’s head. Id. at 475. Rather
than dismiss that possibility as speculative, we held that
“[t]he conjecture is implausible, though not quite so
outlandish that it can be rejected as a matter of law. But
pretty outlandish . . . .” Id. In finding sufficient evidence
of causation, we noted that “it is possible to tell a
24 No. 11-2173
story in which the horizontal position of the visor in
this case was the result of the railroad’s negligence in
failing to tighten the bolts.” Id. at 476. Recognizing
that evidence may be merely circumstantial, we
opined that it might even be argued that the position
of the visor was itself evidence of negligence, as the
position has no utility. Id. at 477. Therefore, in Coffey
we did not fault the plaintiff for failing to present
sufficient evidence of causation or for relying on circum-
stantial evidence. Coffey in fact held that the causation
theory could not be dismissed as a matter of law even
though the possible story was outlandish. The problem
in Coffey instead was with the failure to provide any
evidence at all of foreseeability. No evidence was pre-
sented of the proximity of the visor to the driver’s
head when groping for the light switch, or of the
weight and padding of the visor, either of which would
have given the railroad reason to foresee injury and
take precautions. Id.Similar to Coffey, the fall of the pole from the cups
holding it is itself evidence that the pole was not
properly installed—either as a result of a failure to prop-
erly cut the pole to the optimal length or to secure the
pole tightly in the cup. The testimony of Otero and
Scott was consistent that a pole cut to the proper length
and securely tightened will not fall. Although the
district court appeared to believe that Otero con-
tradicted that testimony in also stating that the hill
may have caused the fall, there is nothing inherently
inconsistent in those two statements. The effect of
gravity could certainly cause a pole on the lower post
No. 11-2173 25
to seat itself more deeply in the lower cup, with the
result that a pole that was cut even slightly too short
or not tightened securely would fall. There is nothing
inconsistent in identifying both the hill and the
improper installation as causing the pole to fall.
Moreover, the failure to inspect the pole installation
before workers proceeded to install the mesh—an inspec-
tion that Metra appears to require—establishes causa-
tion as well because there is no reason to believe that
an improperly installed pole would not have been dis-
covered in the course of an inspection. The failure to
inspect the installation of the top rail was particularly
problematic because the testimony indicated that the
work crew was concerned about the installation of the
fence given the steep grade of the hill, and that the top
rail for that section was left uncompleted because of
the difficulties it presented. Those difficulties arguably
were compounded by the failure to train the employees
as to how to address such circumstances. Thus, it is not
only “possible to tell a story” that involves employer
negligence here, it is in fact the most likely explanation
for the events given the uncontradicted testimony that
a properly cut and tightened pole will not fall, and
that workers were supposed to inspect the work at
each stage. And the concern in Coffey with the lack of
evidence of foreseeability is not even an issue raised
by the parties in this case—nor should it be. The
danger of an improperly secured metal pole suspended
in the air above employees working to secure a mesh
fence is obvious, and the need to take precautions
follows from that. In fact, the obligation to inspect the
26 No. 11-2173
work at each stage is undoubtedly in recognition of that
danger.
Lynch therefore adequately raised genuine issues of
material fact as to negligence as required under FELA.
The decision of the district court granting summary
judgment is V ACATED and the case R EMANDED for fur-
ther proceedings consistent with this opinion.
10-29-12