Bowles v. CSX Transp., Inc.

• Decision Date: 26 October 1992
• Docket Number: No. A92A1534,A92A1534
• Citation: 206 Ga.App. 6,424 S.E.2d 313
• Parties: BOWLES v. CSX TRANSPORTATION, INC.
• Court: Georgia Court of Appeals

Page 313

424 S.E.2d 313

206 Ga.App. 6

BOWLES v. CSX TRANSPORTATION, INC.

No. A92A1534.

Court of Appeals of Georgia.

Oct. 26, 1992.

Burge & Wettermark, Michael J. Warshauer, Atlanta, for appellant.

Alston & Bird, Jack H. Senterfitt, Atlanta, for appellee.

JOHNSON, Judge.

Robert M. Bowles appeals from the grant of CSX Transportation, Inc.'s motion for summary judgment. Bowles initiated this action under the terms of the Federal Employers' Liability Act (FELA), 45 U.S.C.A. § 51, to recover for personal injuries sustained by Bowles during the performance of his duties as a railroad worker for CSX. Count 1 of the complaint alleges that Bowles sustained an injury to his back while going up two stairs to enter the yard office to check his work assignment. Count 2 of the complaint alleges that Bowles has sustained hearing loss as a result of violations of the Locomotive Boiler Inspection Act (BIA), 45 U.S.C.A. § 23.

1. In his deposition Bowles stated that while going up the steps he heard a "pop" in his back. Although alleged in the complaint, there is no evidence in the record that Bowles fell. He admitted that he has never complained about the condition of the stairs and has gone up them many times. The record contains Bowles' statements that he was not carrying anything when the incident occurred nor was it dark or wet.

"While the FELA does provide for a cause of action against the employer for negligent conduct which causes an injury to an employee, the Act does not make the employer an insurer of the employee for any injury he receives. [Cit.] Nevertheless, the employer has a duty to provide the employee a reasonably safe workplace which includes safe conditions, tools, facilities, and supervision. [Cit.]" Currin v. Seaboard System R., 187 Ga.App. 751, 752, 371 S.E.2d 142 (1988).

CSX argues that no evidence was presented which would establish that Bowles' back injury was the result of its negligence. In support of its position CSX relies on an unpublished fourth circuit case, Aliberti v. National R. Passenger Corp., 936 F.2d 567 (4th Cir.1991). This rara avis among FELA cases granted summary judgment to the railroad in a case in which the plaintiff injured his back while exiting a van which had stopped on uneven ground. In affirming the summary judgment entered by the district court, the court held that the event was unforeseeable. Factually, Aliberti is distinguishable from the case at bar. The railroad in Aliberti had no control over where the driver of the van would stop to discharge the workers. Here, an inspection of the yard might have revealed a potential danger in the stairs which are a readily apparent, static feature of the workplace.

Bowles has submitted the affidavit of a professional engineer who opined that the stairs violated numerous codes and industry standards and could have contributed to Bowles' injuries. "An affidavit may be considered even if conclusions are intermingled with facts. Furthermore, opinion evidence by the nonmoving party can be sufficient to preclude an award of summary judgment." (Citations omitted.) Hepner v. Southern R. Co., 182 Ga.App. 346, 349, 356 S.E.2d 30 (1987).

" 'Under (the FELA) the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes....' [Cits.]" (Emphasis supplied.) Gilbert v. CSX Transp., 197 Ga.App. 29, 31(2), 397 S.E.2d 447 (1990). ¹ Despite the paucity of evidence in this case, the affidavit creates issues of fact which prevent us from concluding as a matter of law that the condition of the stairs did not contribute to Bowles' injury. Summary judgment as to that claim must be reversed.

2. Summary judgment was proper with regard to Bowles' claim for hearing loss under BIA. Bowles has not offered any medical evidence of the etiology of his complaint. Expert testimony is required where the disposition of a "medical question" controls the resolution of a case. Eberhart v. Morris Brown College, 181 Ga.App. 516, 518(1), 352 S.E.2d 832 (1987); Cherokee County Hosp. Auth. v. Beaver, 179 Ga.App. 200, 204(2), 345 S.E.2d 904 (1986). The same standard applies in FELA cases. See Hines v. Consolidated Rail Corp., 926 F.2d 262 (3rd Cir.1991); Moody v. Main Central R. Co., 823 F.2d 693 (1st Cir.1987).

Bowles' claim for hearing loss is based entirely on his testimony that he was exposed to noise from engines and horns from which we are being asked to extrapolate a causal link. Bowles has offered no evidence of any defect in CSX's equipment, or...