Lynch v. Ne. Reg'l Commuter R.R. Corp., 11–2173.

• Decision Date: 29 October 2012
• Docket Number: No. 11–2173.,11–2173.
• Parties: Renardo L. LYNCH, Plaintiff–Appellant, v. NORTHEAST REGIONAL COMMUTER RAILROAD CORP., d/b/a Metra/Metropolitan Rail, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

700 F.3d 906

Renardo L. LYNCH, Plaintiff–Appellant,

v.NORTHEAST REGIONAL COMMUTER RAILROAD CORP., d/b/a Metra/Metropolitan Rail, Defendant–Appellee.

No. 11–2173.

United States Court of Appeals,Seventh Circuit.

Argued March 29, 2012.

Decided Oct. 29, 2012.

Richard L. Carlson (argued), Attorney, Hunegs, LeNeave & Kvas, P.A., Minneapolis, MN, Neal C. Zazove, Attorney, Zazove & Associates, Chicago, IL, for Plaintiff–Appellant.

Marivel Montes (argued), Attorney, Metra, Chicago Regional Transportation Authority, Chicago, IL, for Defendant–Appellee.

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, 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 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 positions. 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; brickwork; 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 regarding 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 mechanic'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 installed. Those rails were secured to the fence posts by 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. According 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.

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 summary 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. According 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” 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 workplace 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 evidence of the measurement of the top rail and the distance between the fence posts, or the grade of the hill. ¹Id. at 7–8. The court dismissed the testimony of coworker 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 standard under FELA was not so lax as to allow a plaintiff to proceed on nothing more than rank speculation, 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 summary 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 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 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 contains sufficient evidence of causation and therefore the court improperly granted summary judgment on the merits.

IV.

FELA was enacted in...