Atlas v. Union Pacific Railroad Co. , 2019 IL App (1st) 181474 ( 2019 )


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    2019 IL App (1st) 181474
    SIXTH DIVISION
    May 24, 2019
    No. 1-18-1474
    IN THE
    APPELLATE COURT OF ILLINOIS
    FIRST JUDICIAL DISTRICT
    ERIC ATLAS,                                         )     Appeal from the Circuit Court
    )     of Cook County.
    Plaintiff-Appellant,                         )
    )
    v.                                                  )     No. 16 L 1123
    )
    UNION PACIFIC RAILROAD COMPANY,                     )
    )     Honorable Allen Price Walker,
    Defendant-Appellee.                          )     Judge Presiding.
    PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion.
    Justices Connors and Harris concurred in the judgment and opinion.
    OPINION
    ¶1     Eric Atlas brought this lawsuit against Union Pacific Railroad Company (Union Pacific).
    One count was a claim under the Federal Employers’ Liability Act (FELA) (
    45 U.S.C. § 51
    et seq. (2012)), and one count alleged common law negligence. The parties filed cross-motions
    for summary judgment. The circuit court granted Union Pacific’s motion and denied Atlas’s.
    Because no genuine issue of fact exists as to whether Atlas was an employee of Union Pacific for
    FELA purposes, and because Atlas failed to raise a genuine issue of material fact as to Union
    Pacific’s duty of care, we affirm.
    No. 1-18-1474
    ¶2                                       I. BACKGROUND
    ¶3      The pleadings, admissions, and affidavits to the cross-motions for summary judgment
    establish the following facts. Union Pacific is a railroad company that owns and operates
    facilities in the Chicago area, including an intermodal facility called Global II. 1 Union Pacific
    entered into a contract with Mobile Rail Solutions, Inc. (MRS), under which MRS would service
    Union Pacific locomotives on an “as needed” basis for a flat fee. MRS would service the
    locomotives by checking and adding cooling water, checking and adding engine lubrication oil,
    dumping and recharging locomotive toilets, cleaning retention bins, draining and disposing the
    contents of retention tanks, cleaning locomotive cabs and windows, supplying cabs with crew
    packs, and checking and adding tractive sand. The contract required that MRS provide the
    service trucks, superintendence, labor, tools, equipment, and materials required to service the
    locomotives. Union Pacific, for its part, agreed to provide the engine cooling water, lubrication
    oil, crew packs, drinking water, and sand.
    ¶4      MRS agreed to “take [Union Pacific’s] training program and abide by all Union Pacific
    safety requirements including clothing, flagging, spill prevention, etc.” Additionally, MRS was
    to be “solely responsible for safety of, and *** provide protection to prevent damage, injury, or
    loss, to all persons who would reasonably be expected to be affected by the Work.” The contract
    explicitly stated that neither MRS nor its agents and employees were to be considered employees
    of Union Pacific. MRS was to remain an “independent contractor.”
    ¶5      Atlas applied for employment with MRS and was hired by MRS. MRS paid Atlas $17 per
    hour, plus overtime, to service locomotives at intermodal facilities owned by Union Pacific and
    1
    The Global II facility is physically attached to another facility, known as Proviso Yards. The
    names are occasionally used interchangeably in the record. For our purposes, there is no particular
    significance to the distinction between Global II and Proviso Yards. Therefore, we simply refer to Global
    II.
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    No. 1-18-1474
    CSX (a competing railroad). MRS checked Atlas’s driving record and administered a driving
    responsibility test. MRS also trained Atlas in topics such as locomotive service operations,
    locomotive servicing standards, and safely transferring septic from locomotive to truck. MRS
    had the exclusive authority to discipline or fire him.
    ¶6     MRS provided Atlas with a tablet computer and a cellular telephone. It also issued
    personal protection equipment, including a safety vest, helmet, safety glasses, work gloves, ear
    plugs, and a plastic face shield. If that personal protection equipment wore out, Union Pacific
    would supply replacement equipment on site. MRS gave Atlas his work schedule and assigned
    him to various intermodal rail facilities owned by Union Pacific or CSX.
    ¶7     During the relevant timeframe, Union Pacific began to transition away from using
    independent contractors to service locomotives at Global II. Union Pacific started providing
    trucks and Union Pacific employees to service locomotives. Occasionally, MRS employees and
    Union Pacific employees, each using their respective company trucks, would service connected
    locomotives at the same time.
    ¶8     One day, Atlas arrived at work at the Global II facility. He clocked in using his MRS
    tablet and did a pre-check on the MRS truck he used to service the locomotives. He then went to
    the Union Pacific office, where the foreman general of the facility, a Union Pacific employee,
    gave him a list of locomotives that needed to be serviced. Neither the foreman general nor any
    other Union Pacific employee directly supervised Atlas as he went about servicing the listed
    locomotives. Working alone, Atlas drove the MRS truck to a locomotive. He flagged the
    locomotive and the track, before and behind. Atlas cleaned the locomotive’s cab and bathroom.
    He then got off of the locomotive and connected the septic hose from the MRS truck to the
    locomotive’s toilet drain pipe. After the septic tank was finished draining, Atlas attempted to
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    No. 1-18-1474
    disconnect the hose from the drain pipe and found that it was stuck. At the time, he was standing
    on an incline, on the “big, red rocks” along the tracks known as “ballast.” With both hands, he
    “tried to pull on it and pull on it,” but it would not come off. Eventually, he “really had to plant
    [his] feet and yank it.” As the hose broke free, Atlas felt a sharp pain in his neck and “went back
    a step or two. [He] never fell.”
    ¶9     After removing the hose, Atlas observed “shiny” or “fresh” metal in the groove on the
    drain pipe into which cams on the hose coupler would latch. He had not seen that shiny or fresh
    metal before he put the hose on. Atlas did not notify anyone about the drain pipe incident, and
    continued working.
    ¶ 10   That same evening, Atlas accidentally cut his arm on a piece of fiberglass. He cleaned the
    cut, put a bandage on it, and continued working. When he finished his shift, he went home. The
    next day, Atlas again worked a shift at Global II. He did not notify anyone about the drain pipe
    incident. The second day after the incident, Atlas again reported for work at Global II. However,
    he did not complete his shift because he wanted a medical professional to examine the cut on his
    arm. He told the Union Pacific foreman general about cutting his arm, but not about the drain
    pipe. Atlas then called his MRS supervisor and told him about cutting his arm, but not about the
    drain pipe. The MRS supervisor took Atlas to the hospital.
    ¶ 11   The parties filed cross-motions for summary judgment. In support of his motion, Atlas
    attached the affidavit of Jeffrey Miller, an MRS supervisor. Miller’s affidavit stated that: Union
    Pacific assigned locomotives to be serviced, Atlas and other MRS workers reported to the Union
    Pacific mechanic in charge, Union Pacific provided training for MRS workers, Union Pacific
    provided trucks to do the work, and Atlas’s role was to take orders from Union Pacific
    supervisors and do the work that they assigned.
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    No. 1-18-1474
    ¶ 12   Atlas also relied on a mechanical expert, who concluded, based on Atlas’s testimony, that
    the toilet drain pipe was damaged such that it prevented the hose from properly disconnecting. It
    was his opinion that the shiny or fresh metal in the groove on the drain pipe was the “condition”
    that caused the dysfunction. He opined that Union Pacific failed to properly inspect and maintain
    the drain pipe to make sure that it was safe. He also testified, however, that he never saw shiny or
    fresh metal in the groove of a toilet drain pipe. Additionally, he testified that he would expect a
    hose to properly disconnect from a drain pipe with shiny or fresh metal in the groove. He could
    not explain how such a condition would cause a hose to become stuck.
    ¶ 13   The circuit court granted Union Pacific’s motion and denied Atlas’s. The court found that
    Atlas failed to raise a genuine issue of material fact that he was an employee of Union Pacific for
    the purposes of FELA. The court also found that Atlas had not raised a genuine issue of material
    fact as to whether his injury was sufficiently foreseeable to sustain a negligence claim.
    Specifically, Atlas had not presented evidence that Union Pacific had actual or constructive
    notice of the alleged defect in the drain pipe.
    ¶ 14   This appeal followed.
    ¶ 15                                       II. ANALYSIS
    ¶ 16   Atlas contends that he raised a genuine issue of material fact as to whether he was an
    employee of Union Pacific for the purposes of FELA. He also argues that the circuit court erred
    in granting judgment on his common law negligence claim. We disagree.
    ¶ 17   Summary judgment is appropriate “if the pleadings, depositions, and admissions on file,
    together with the affidavits, if any, show that there is no genuine issue as to any material fact and
    that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West
    2016). Summary judgment should only be granted when the moving party’s right to judgment is
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    No. 1-18-1474
    “clear and free from doubt.” Outboard Marine Corp. v. Liberty Mutual Insurance Co., 
    154 Ill. 2d 90
    , 102 (1992). To determine whether there is a genuine issue of material fact, we construe the
    pleadings, depositions, admissions, and affidavits strictly against the moving party and liberally
    in favor of the opponent. 
    Id. at 131-32
    . If reasonable people would draw divergent inferences
    from undisputed facts, summary judgment must be denied. Williams v. Manchester, 
    228 Ill. 2d 404
    , 417 (2008).
    ¶ 18   However, “[s]tatements in an affidavit which are based on information and belief or
    which are unsupported conclusions, opinions, or speculation are insufficient to raise a genuine
    issue of material fact.” Outboard Marine, 
    154 Ill. 2d at 132
    . Moreover, “summary judgment
    requires the responding party to come forward with the evidence that it has—it is the put up or
    shut up moment in a lawsuit.” (Internal quotation marks omitted.) Parkway Bank & Trust Co. v.
    Korzen, 
    2013 IL App (1st) 130380
    , ¶ 14. We review the circuit court’s decision on a motion for
    summary judgment de novo. 
    Id.
    ¶ 19   Generally, a FELA action brought in state court is governed by state procedural law and
    federal substantive law. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 
    201 Ill. 2d 260
    , 274 (2002) (citing St. Louis Southwestern Ry. Co. v. Dickerson, 
    470 U.S. 409
     (1985)).
    “With respect to the interpretation of federal law, we are bound only by the decisions of the
    United States Supreme Court and the Illinois Supreme Court, not by the decisions of the lower
    federal courts.” Ammons v. Canadian National Ry. Co., 
    2018 IL App (1st) 172648
    , ¶ 20.
    However, uniformity is an important consideration, and we view the interpretation of federal law
    by federal courts with deference. State Bank of Cherry v. CGB Enterprises, Inc., 
    2013 IL 113836
    , ¶ 35.
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    No. 1-18-1474
    ¶ 20   In order to establish a cause of action under FELA, a plaintiff must prove that
    (1) defendant is a common carrier, (2) plaintiff was an employee of the common carrier,
    (3) plaintiff’s injury was sustained while employed by the common carrier, and (4) defendant’s
    negligence is the cause of the injuries. 
    45 U.S.C. § 51
     (2012).
    ¶ 21   An employee of a non-FELA entity may, however, recover from a railroad defendant
    under the statute under if (1) the plaintiff is a borrowed servant of the railroad, (2) the plaintiff
    works for two employers (one of which is the railroad) simultaneously, or (3) the plaintiff’s
    employer is a servant of the railroad, making the plaintiff is a “subservant” of the railroad. Kelley
    v. Southern Pacific Co., 
    419 U.S. 318
    , 324 (1974). “When the plaintiff fails to present evidence
    to create a genuine issue of material fact on the question of his employment by the defendant for
    FELA purposes, summary judgment for the defendant is proper.” Larson v. CSX Transportation,
    Inc., 
    359 Ill. App. 3d 830
    , 834 (2005).
    ¶ 22   Atlas concedes that he was nominally an employee of MRS, which is not a party to this
    appeal and is not a common carrier for FELA purposes. However, he contends that he presented
    sufficient evidence to reach the jury on each of the possible alternative theories of recovery listed
    in Kelley. We disagree.
    ¶ 23   In his complaint, Atlas alleged, as alternatives, that he “was serving as the borrowed
    servant of the railroad; or he was the joint employee of the railroad and [MRS]; or he was the
    subservant of [MRS] that was the servant of the railroad.” However, he did not explicitly argue
    any of these individual theories before the circuit court. In his cross-motion/response brief, Atlas
    relied on Kelley and Schmidt v. Burlington Northern & Santa Fe Ry. Co., 
    605 F.3d 686
     (9th Cir.
    2010), both of which are subservant cases. In granting summary judgment for Union Pacific, the
    circuit court concluded that Atlas was pursuing the subservant theory rather than the other
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    No. 1-18-1474
    theories. Consequently, Union Pacific argues that the other theories are waived. See Killion v.
    Meeks, 
    333 Ill. App. 3d 1188
    , 1190 (2002) (arguments not raised before the trial court are
    waived). We agree; having failed to raise those arguments in its briefs on the cross-motions,
    Atlas may not raise them now.
    ¶ 24    Even if these alternative arguments were not waived for failure to raise them before the
    circuit court, they are forfeited because Atlas has made no substantive arguments on those points
    before this court. Illinois Supreme Court Rule 341(h)(7) (eff. May 25, 2018) governs the
    requirements for appellants’ briefs. With respect to arguments, the rule states that the briefs shall
    contain “[a]rgument, which shall contain the contentions of the appellant and the reasons
    therefor, with citation of the authorities and the pages of the record relied on.” An argument that
    contains merely vague allegations may be insufficient if it does not include citations to authority.
    See, e.g., Dillon v. Evanston Hospital, 
    199 Ill. 2d 483
    , 493 (2002) (three-paragraph argument
    was insufficient to satisfy Rule 341 where argument did not include any citations to authority).
    Although Atlas argues that a genuine issue of material fact exists as to his employment status
    under all three theories, his brief skips from the recitation of the three theories by the Kelley
    court to an analysis of the subservant theory. Ironically, he primarily relies on Schmidt, a case in
    which the court only addressed the subservant theory because it found that the other theories
    were waived. Schmidt, 
    605 F.3d at 689
    . 2
    2
    As explained below, Atlas failed to raise a genuine issue as to whether he was a subservant of
    Union Pacific. Even if we reached the merits of the borrowed servant or dual employee theories, we
    would find that Atlas failed to raise a genuine issue as to his employment. As Atlas correctly notes in his
    reply brief, the inquiry on each theory focuses on the issue of control, so the evidence necessary to
    support one theory is often the same evidence required to support the others. See Larson, 359 Ill. App. 3d
    at 838 (“Having concluded that Larson has presented insufficient evidence of CSXT control over his
    work to require the submission of his status as a borrowed or dual servant of the railroad to the jury, we
    also conclude that the same evidence fails to create a jury question regarding Larson’s claim that FGE
    was the railroad’s servant.”).
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    No. 1-18-1474
    ¶ 25    Under the subservant theory, a plaintiff must show that his employer was the common-
    law servant of the defendant railroad, such that the railroad controlled or had the right to control
    the employer’s daily operations. Id. at 690. A plaintiff must also show that he was “ ‘employed
    to perform services in the affairs of [the defendant railroad] and *** with respect to the physical
    conduct in the performance of the services [was] subject to [that railroad’s] control or right to
    control.’ ” Id. (quoting Kelley, 
    419 U.S. at 324
    ). It is not enough for Atlas to merely show that
    MRS was the railroad’s agent, or that he was acting to fulfill the railroad’s obligations. Union
    Pacific’s generalized oversight of Atlas, without physical control or the right to exercise physical
    control of his daily work, is insufficient. See Kelley, 
    419 U.S. at 325-26
    .
    ¶ 26    Atlas argues that we should follow Schmidt in finding that he raised a genuine issue of
    material fact as to whether he was a subservant of Union Pacific. In Schmidt, the plaintiff applied
    for employment with the defendant railroad, but was ultimately hired by a subsidiary of the
    railroad. Schmidt, 
    605 F.3d at 688
    . When he was hired, he was told by a supervisor that he was a
    railroad employee, and some of his coworkers believed that they were also railroad employees.
    
    Id.
     Workers, including Schmidt’s supervisors, wore railroad logos on their work clothing. 
    Id.
     The
    railroad provided the plaintiff work gloves and vouchers for boots. 
    Id.
     Railroad safety policy
    required the plaintiff to use specific safety gear. 
    Id.
     The plaintiff was required to participate in its
    safety and job skills training along with railroad employees. 
    Id. at 690
    . It was the railroad’s own
    medical officer who determined that the plaintiff was unable to return to work. 
    Id. at 691
    . The
    railroad, not Schmidt’s nominal employer, paid his wages. 
    Id.
     Documents from railroad
    management referred to Schmidt as a railroad employee and treated him as subject to its control.
    
    Id.
     The Schmidt court agreed with the defendant railroad that there was “scant” evidence that the
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    No. 1-18-1474
    railroad exercised control over the plaintiff’s work, but concluded that there remained a genuine
    issue of material fact. 
    Id.
    ¶ 27     The facts of this case are very different from those in Schmidt, and we agree with the
    circuit court that there is no genuine issue of fact as to whether Atlas was a subservant of Union
    Pacific. The nominal employer in Schmidt was a subsidiary, not an independent contractor like
    MRS. In fact, Atlas occasionally also serviced CSX locomotives at a CSX facility on behalf of
    MRS. The contract between MRS and Union Pacific expressly states that “[MRS] and the agents
    and employees of [MRS] are not and shall not be considered as employees of [Union Pacific].”
    And, unlike in Schmidt, it was the sole responsibility of MRS to hire, train, discipline, and
    terminate MRS employees, including Atlas. See also Campbell v. BNSF Ry. Co., 
    600 F.3d 667
    ,
    673 (6th Cir. 2010) (listing those particular tasks as “crucial areas” evaluating a subservant
    claim). There is no evidence that MRS employees or supervisors ever wore Union Pacific logos.
    MRS provided Atlas with a truck and other tools to perform his job, as well as his personal
    protective equipment. And when Atlas first complained of an on-the-job injury, it was an MRS
    supervisor, not a Union Pacific employee, who took him to the hospital.
    ¶ 28     Atlas contends that his case is similar to Schmidt because MRS employees were required
    to abide by Union Pacific safety guidelines, and because Union Pacific would replace worn-out
    MRS protective equipment on site. But that does not show the sort of control contemplated under
    the subservant theory of liability. “The agreement to abide by certain safety regulations is a
    reasonable request necessary to safeguard against dangerous work and does not constitute control
    or supervision.” Royal v. Missouri & Northern Arkansas R.R. Co., 
    857 F.3d 759
    , 763 (8th Cir.
    2017).
    - 10 -
    No. 1-18-1474
    ¶ 29   Atlas contends that Union Pacific instructed MRS and Atlas on which locomotives to
    service and the order in which to service them. It is undisputed, however, that Atlas would
    receive a list of locomotives that needed to be serviced and then set about his job alone, without
    any direct supervision from the railroad. That level of contact indicates nothing more than the
    necessary coordination of a complex railroad operation. See Kelley, 
    419 U.S. at 330
     (“the
    evidence of contacts between [railroad] employees and [contractor] employees may indicate, not
    direction or control, but rather the passing of information and the accommodation that is
    obviously required in a large and necessarily coordinated operation”); Campbell, 
    600 F.3d at 669, 673
     (holding that, although railroad’s hub manager admittedly oversaw contractor’s work to
    ensure timely completion and safety compliance, “discussions” about which tracks needed to be
    cleared and spotted were not sufficient to establish control). This minimal interaction between
    Atlas and the Union Pacific foreman general is in sharp contrast to cases such as Baker v. Texas
    & Pacific Ry. Co., 
    359 U.S. 227
    , 228-29 (1959) (per curiam), where
    “a supervisor, admittedly in the employ of the railroad, in the daily course of the work
    exercised directive control over the details of the job performed by the individual
    workmen, including the precise point where the mixture should be pumped, when they
    should move to the next point, and the consistency of the mixture.”
    ¶ 30   Atlas argues that the affidavit of Jeffrey Miller raises a genuine issue of material fact as
    to Atlas’s employment. The circuit court, quoting Kelley, 
    419 U.S. at 330
    , concluded that
    “Miller’s affidavit simply states in conclusory fashion that: [Union Pacific] assigned
    locomotives to be serviced by plaintiff, plaintiff and other MRS workers reported to the
    [Union Pacific] mechanic in charge, [Union Pacific] provided training for MRS workers,
    [Union Pacific] provided trucks to do the work, and that plaintiff’s role at [Union Pacific]
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    No. 1-18-1474
    was to take orders from the [Union Pacific] supervisors and to perform work that the
    [Union Pacific] supervisors assigned. These actions amount to no more than the ‘passing
    of information and the accommodation that is obviously required in a large and
    necessarily coordinated operation.’ ”
    We agree. Miller’s affidavit is conclusory as to the relationship between MRS employees,
    including Atlas, and Union Pacific, and the conditions described in the affidavit so vague that
    they do not contradict Union Pacific’s position that MRS and its employees were independent
    contractors. For example, the assertion that Union Pacific provided trucks does not tend to prove
    Atlas’s claim because the record shows that MRS employees used MRS trucks while Union
    Pacific employees performed similar work using Union Pacific trucks. Likewise, the fact that
    Atlas was tasked with “perform[ing] the work the [Union Pacific] supervisors assigned” is totally
    consistent with the contract language that MRS, as an independent contractor, was to service
    locomotives for Union Pacific “as needed.”
    ¶ 31   If the evidence of railroad control in Schmidt was “scant,” the evidence here is virtually
    nonexistent, and certainly insufficient to raise a genuine issue of material fact as to whether Atlas
    was an employee of Union Pacific for the purposes of FELA. We affirm the judgment on that
    count of the complaint.
    ¶ 32   Atlas also argues that the circuit court erred in entering judgment in favor of Union
    Pacific on his common law negligence claim. His argument on this point is somewhat
    underdeveloped because, he claims, the circuit court granted summary judgment without
    considering this claim. However, the court’s order specifically states that Atlas “failed to present
    sufficient evidence to support his negligence claim, namely, that [Union Pacific] had either
    actual or constructive notice of the defective condition of the toilet drain pipe.”
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    No. 1-18-1474
    ¶ 33   To succeed on a claim of negligence, a plaintiff must first establish that the defendant
    owes him a duty of care. Simpkins v. CSX Transportation, Inc., 
    2012 IL 110662
    , ¶ 14. The
    existence of such a duty is a question of law, and therefore properly determined on a motion for
    summary judgment. 
    Id.
     “The first factor we look to in determining whether a duty of care existed
    in this situation is whether the risk of harm to the plaintiff was reasonably foreseeable. *** If the
    injury was not reasonably foreseeable, no duty can exist.” Id. ¶ 24.
    ¶ 34   Atlas argues that there can be no doubt that Union Pacific owed him a duty of ordinary
    care because he was a business invitee on Union Pacific property at the time of his injury and
    because federal regulations require that railroad companies inspect locomotives that are in use.
    However, duties of care are not absolute. “[L]iability under the rules of ordinary negligence
    requires some knowledge on the part of the defendant, actual or constructive, of the possibility of
    the danger complained of.” Prater v. Veach, 
    35 Ill. App. 2d 61
    , 65 (1962). In Prater, a small
    child was electrocuted when she touched the defendant’s air conditioning unit. Id. at 63. Because
    the defendant had permitted the child to play in his yard, he owed her, as his invitee, a duty to
    exercise reasonable care to make a natural or artificial condition on his premises reasonably safe,
    but only if he had actual or constructive knowledge of the condition. Id. at 64-65. The court
    found that the defendant could not have foreseen the injury because he had no reason to suspect
    that the air conditioner was improperly installed. Id. Because the injury was not reasonably
    foreseeable, the defendant had no duty to protect the child from it. Id.
    ¶ 35   Atlas claims that Union Pacific owed him a duty of care to prevent his being injured due
    to the presence of shiny or fresh metal in the groove of the locomotive’s toilet drain pipe.
    However, he has not produced any evidence to show that Union Pacific had actual or
    constructive knowledge of any defect with the toilet drain pipe, or that the presence of shiny or
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    No. 1-18-1474
    fresh metal in the groove of the drain pipe created a dangerous condition. He testified that he
    attached the hose to the pipe as usual, without any problem. He only noticed the shiny or fresh
    metal in the groove on the pipe after he had yanked the hose free. There is no evidence that the
    metal was like that before Atlas attached the hose, much less that knowledge of the shiny or fresh
    metal would have indicated that there was some dangerous defect with the pipe. In fact, Atlas’s
    mechanical engineer testified that he would not expect shiny or fresh metal to prevent the hose
    from disconnecting properly, and he was unable to explain how it might cause the hose to
    become stuck. So, assuming Union Pacific had a duty to inspect all of its locomotives’ toilet
    drain pipes, Atlas has presented no evidence that such an inspection would have made his injury
    reasonably foreseeable.
    ¶ 36   Because Atlas presented no evidence that his injury was reasonably foreseeable by Union
    Pacific, the circuit court did not err in granting summary judgment to Union Pacific on his
    negligence claim.
    ¶ 37   We note that in his reply brief, Atlas contends that Union Pacific had a duty to maintain
    safe walkways at Global II. No such contention appears in his opening brief. Points that an
    appellant fails to raise in his opening brief are forfeited. Ill. S. Ct. R. 341(h)(7) (eff. May 25,
    2018). This argument is therefore forfeited.
    ¶ 38                                   III. CONCLUSION
    ¶ 39   The circuit court did not err in granting Union Pacific’s motion for summary judgment on
    both Atlas’s FELA and common law negligence claims. Accordingly, we affirm the court’s
    judgment.
    ¶ 40   Affirmed.
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