Holbrook v. Norfolk Southern Railway Co.

• Decision Date: 08 July 2005
• Docket Number: No. 04-1134.,04-1134.
• Citation: 414 F.3d 739
• Parties: Robert L. HOLBROOK, Plaintiff-Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

414 F.3d 739

Robert L. HOLBROOK, Plaintiff-Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant-Appellee.

No. 04-1134.

United States Court of Appeals, Seventh Circuit.

Argued September 24, 2004.

Decided July 8, 2005.

Patrick J. Harrington (argued), Harrington, Thompson, Acker & Harrington, Chicago, IL, for Plaintiff-Appellant.

John C. Duffey, Heather L. Emenhiser (argued), Stuart & Branigin, Lafayette, IN, for Defendant-Appellee.

Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Plaintiff Robert L. Holbrook sued his employer, defendant Norfolk Southern Railway Company, under the Federal Employers' Liability Act (FELA) for damages he suffered on the job. In this appeal, he challenges the district court's grant of summary judgment in Norfolk Southern's favor, and its decision to strike several photographs, but we find that he failed to establish that Norfolk Southern knew of the dangerous condition that caused his injury, and that a sufficient foundation was not laid for the contested photos. We therefore affirm both determinations of the district court.

I. BACKGROUND

Holbrook has worked for Norfolk Southern since October 10, 1967. Since 1981, he has worked as a road conductor, primarily assigned to take trains on runs between Elkhart, Indiana, and Chicago, Illinois. On December 23, 2001, Holbrook was preparing a freight train for departure from Norfolk Southern's Elkhart Yard by coupling air hoses and climbing on rail car ladders to release hand brakes. This work required him to occasionally step between the rails of the tracks, which that day were covered by snow. As he was working on one car, he swung his left foot around and placed it on the bottom rung of a ladder attached to the side of the car. His foot slipped, causing him to fall and suffer an injury to his knee. While on the ground, he noticed a sticky, oily substance on the rung, which he wiped off with a paper towel. While Holbrook does not know whether the substance was on the ladder before he came to it or tracked onto it from somewhere else, he claims that it could only have come from the Elkhart Yard because he only wears his work boots (the shoes that he was wearing at the time of the slip) when he is at work.

Holbrook brought this cause of action against Norfolk Southern pursuant to the FELA, 45 U.S.C. §§ 51 et seq., alleging that while in the course of performing his duties, he was caused to slip due to a hazardous accumulation of oil and thereby injured. The district court granted summary judgment in favor of Norfolk Southern, finding that Holbrook failed to establish that his injury was caused by a dangerous condition of which the defendant had notice. The lower court also granted the railroad's motion to strike photographs attached to the affidavit of one of Holbrook's witnesses (Steven Filbert) that purported to depict accumulations of oil in various parts of the Elkhart Yard. Holbrook appeals.

II. ANALYSIS

A. Summary Judgment Properly Granted on FELA Claim

The FELA provides that "[e]very common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." 45 U.S.C. § 51. In so providing, "the FELA imposes on railroads a general duty to provide a safe workplace." McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 300 (7th Cir.1996) (citing Peyton v. St. Louis Southwestern Ry. Co., 962 F.2d 832, 833 (8th Cir.1992)). Because it is meant to offer broad remedial relief to railroad workers, a plaintiff's burden when suing under the FELA is significantly lighter than in an ordinary negligence case. Lisek v. Norfolk & Western Ry. Co., 30 F.3d 823, 832 (7th Cir.1994); Harbin v. Burlington Northern R.R., 921 F.2d 129, 131 (7th Cir.1990). Indeed, a railroad will be held liable where "employer negligence played any part, even the slightest, in producing the injury." Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). With this lighter burden of proof, a plaintiff can more easily survive a motion for summary judgment. Lisek, 30 F.3d at 832.

The FELA does not, however, render a railroad an insurer of its employees. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994); Milom v. New York Cent. R.R. Co., 248 F.2d 52, 55 (7th Cir.1957). Thus, a plaintiff must proffer some evidence of the defendant's negligence in order to survive summary judgment. Lisek, 30 F.3d at 832 (citing Deutsch v. Burlington Northern R.R. Co., 983 F.2d 741, 744 (7th Cir.1993)). In particular, "[t]o establish that a railroad breached its duty to provide a safe workplace, the plaintiff must show circumstances which a reasonable person would foresee as creating a potential for harm." McGinn, 102 F.3d at 300. To establish such foreseeability, a plaintiff must show that the employer had actual or constructive notice of those harmful circumstances. Williams v. Nat'l R.R. Passenger Corp., 161 F.3d 1059, 1063 (7th Cir.1998) ("[A] FELA plaintiff injured by a defective condition cannot recover damages without showing that the employer had actual or constructive notice of the condition.").

Here, the dangerous condition of which Norfolk Southern must have had notice in order to be liable is the tiny dab of grease—or its origins—that gave rise to Holbrook's fall. What we know from the evidence is that the dab somehow ended up on the ladder, and that Holbrook slipped because of it. But the evidence cannot confirm from where this greasy substance came. This does not end our inquiry or doom Holbrook's claim, however, for once we accept that the greasy substance was on the ladder at the time of his fall, we are left with only two possibilities as to how it got there: either Holbrook tracked it onto the ladder himself, or the substance was on the ladder before he stepped on it. Though Holbrook cannot say which scenario was in fact the case, he argues that, in either event, Norfolk Southern would have had notice of the condition.

1. Actual Notice Not Established

In the event that the grease was tracked onto the ladder by his boots, Holbrook argues that the substance came from conditions of which Norfolk Southern had actual notice—namely, pools of oil that had accumulated between the tracks throughout the Elkhart Yard. There is evidence that such pools existed, at least at some point in time, and that Norfolk Southern was aware of them. In particular, Holbrook points to annual safety inspection reports filed year after year with Norfolk Southern by Steven Filbert—a Norfolk employee and Union representative—detailing safety concerns posed by such accumulations of grease and oil in the Yard, including the general area where he was injured (the West End of track 5W). Though he cannot say whether he stepped in any accumulation of oil on the day of the accident, he has testified that he stepped in between the tracks where such oil might be found several times in the course of his duties. Furthermore, through the affidavits of Filbert, Raymond Duffany (a railroad engineering expert), and Jay P. Geary (the assistant terminal superintendent of the Elkhart Yard), Holbrook proffered evidence suggesting that, despite its knowledge of the dangerous conditions, Norfolk Southern did nothing to prevent them.

Even assuming that such pools of oil did accumulate at various times throughout the life of the Elkhart Yard and that Norfolk Southern did in fact have notice of them, such assumptions alone would still fall short of sustaining Holbrook's claim. Rather, to succeed, Holbrook must not only identify a dangerous condition of which the defendant was aware, but also connect that known condition to his injury. Indeed, Norfolk Southern's notice of accumulated oil pools would be wholly irrelevant to Holbrook's claim absent a showing that such known conditions in fact caused his injury. Thus, in order to connect his injury to the known condition, two further assumptions would be required: that an accumulated oil pool was present on the day Holbrook was injured, and that Holbrook in fact stepped in that pool—or at least in its vicinity—before mounting the ladder. Unwilling at the summary judgment stage to make these further assumptions, the district court rejected Holbrook's claim, finding no evidence tying his injury (or, more precisely, the dab of grease that caused it) to those conditions of which the defendant had actual knowledge.

Holbrook, however, insists that by requiring him to tie his injury to those known conditions, the district court improperly made it his burden to show definitively that the known condition caused his injury. He argues that, instead, his burden is merely to establish a reasonable inference that those known dangerous conditions played a part in his injury. In support of his position, he directs us to Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963). In Gallick, the defendant railroad permitted a pool of stagnant water to accumulate on its property, attracting a variety of insects. Id. at 109, 83 S.Ct. 659. While in the vicinity of the pool, the plaintiff (Gallick) was bitten by an insect, causing an injury that ultimately led to the amputation of his leg. Id. Gallick in turn brought a FELA claim against the railroad and secured a jury verdict in his favor. Id. at 112, 83 S.Ct. 659. An appellate court, however, overturned that verdict, finding that the absence of direct evidence definitively connecting the infectious insect to the stagnate pool on the railroad's premises—as opposed to the nearby putrid mouth of the Cuyahoga River or other unsanitary places located on properties neither owned nor controlled by the defendant— left the plaintiff's case unfit for a jury. Id.

The Supreme Court disagreed, finding that the plaintiff had...