Strickland v. Norfolk S. Ry. Co., 11–15589.

Citation23 Fla. L. Weekly Fed. C 1483,34 IER Cases 480,692 F.3d 1151
Decision Date27 August 2012
Docket NumberNo. 11–15589.,11–15589.
PartiesConnie STRICKLAND, Plaintiff–Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

692 F.3d 1151
34 IER Cases 480
23 Fla.
L. Weekly Fed. C 1483

Connie STRICKLAND, Plaintiff–Appellant,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, Defendant–Appellee.

No. 11–15589.

United States Court of Appeals,
Eleventh Circuit.

Aug. 27, 2012.


[692 F.3d 1153]


Michael J. Warshauer, Trent Shuping, Warshauer Law Group, PC, Douglas C. Dumont, Atlanta, GA, for Plaintiff–Appellant.

Daryl Glenn Clarida, Keith M. Hayasaka, Hall, Bloch, Garland & Meyer, LLP, Atlanta, GA, Carter Glasgow Phillips, Eric Shumsky, Sidley Austin, LLP, Washington, DC, for Defendant–Appellee.


Appeal from the United States District Court for the Northern District of Georgia.
Before JORDAN and FAY, Circuit Judges, and EDENFIELD,* District Judge.

FAY, Circuit Judge:

On July 23, 2009, Connie Strickland had been “working on the railroad / All the live-long day.”1 In fact, he claims he was working his customary twelve-hour shift when, towards the end of that shift, he suffered a massive shoulder injury as a result of a faulty handbrake. Strickland, however, could not identify the rail car on which the handbrake was installed. Nonetheless, he filed suit against his employer, Norfolk Southern Railway Company (“Norfolk Southern”), stating claims under the Federal Employers' Liability Act (“FELA”), 45 U.S.C. § 51 et seq.,2 and the

[692 F.3d 1154]

Federal Safety Appliance Act (“FSAA”), 49 U.S.C. § 20301 et seq.3 Subsequently, Norfolk Southern moved for summary judgment, contending that, in the absence of an identification of the rail car and the alleged faulty handbrake, there was insufficient evidence to constitute a genuine issue of material fact to prevent summary judgment in its favor. Norfolk Southern's motion implicitly relied upon the contention that Strickland's testimony was insufficient in and of itself to defeat summary judgment. Without addressing the sufficiency of Strickland's testimony, the district court granted summary judgment to Norfolk Southern.

On Strickland's appeal, we are faced with two issues. The first issue is whether the district court applied the proper standard in adjudicating Norfolk Southern's motion for summary judgment; the second is whether summary judgment was appropriate even if the district court applied the wrong standard. Finding both that the district court applied the wrong standard and that, even if it had applied the correct standard, summary judgment would have been improper, we reverse the district court's order and remand for proceedings consistent with this opinion.

I.

We review the district court's grant of summary judgment de novo, viewing all evidence and drawing all reasonable factual inferences in favor of the nonmoving party. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir.2000) (en banc). Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Id. In other words, “[t]he District Court [must] consider all evidence in the record when reviewing a motion for summary judgment—pleadings, depositions, interrogatories, affidavits, etc.—and can only grant summary judgment if everything in the record demonstrates that no genuine issue of material fact exists.” Tippens v. Celotex Corp., 805 F.2d 949, 952 (11th Cir.1986) (internal citation and quotation omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, we may affirm the district court's judgment “on any ground that finds support in the record.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir.2001) (internal quotation marks omitted).

[692 F.3d 1155]

II.

The relevant facts of this case can fairly be condensed as follows: An experienced railroad worker for over 30 years, Strickland was employed by Norfolk Southern as a switchman. As a switchman, Strickland's duties required him to mount and climb rail cars, as well as lift, pull, and twist handbrakes once aboard those rail cars.4 He was operating as a switchman on July 23, 2009. His work day began at 7:30 a.m. Towards the end of his shift, around 5:45 p.m., one rail car in particular—a tank car, although Strickland recalls no other characteristics—5gave Strickland a harder time than normal in releasing the handbrake. Strickland was on the car alone and saw that the handbrake appeared normal, without corrosion or any apparent mechanical failure. He attempted to disengage the quick release of the brake; it moved but the brake did not release. This was not “an out-of-the-blue thing.” He therefore assumed the stance taught by Norfolk Southern and required for use of the second stage of the handbrake and attempted to turn the brake wheel using “reasonable effort.” 6 It would not turn. The failure of the handbrake wheel to turn was uncommon. It was only when he exerted more force on a second attempt that Strickland felt the handbrake release.7 At different times, he described this effort as putting “a little bit more [steady] pressure on it” and “a very high amount of effort” without changing his stance or his grip. After turning the wheel, he felt a twinge in his shoulder. He continued to work and completed his twelve-hour shift.8 Afterwards, his shoulder felt sore, which he may have mentioned in general conversation to his co-workers but did not report to Norfolk Southern. However, when he got home, he mentioned to his wife that his shoulder was sore and that he thought it was because of one particular handbrake he had to release. Nonetheless, Strickland continued to go to work.

Soon after, Strickland began experiencing pain that he had never before experienced in his shoulder. Strickland believed that the actions he took in disengaging the handbrake in question caused his shoulder injury. Strickland reported the incident to Norfolk Southern on August 3, 2009, almost two weeks after the accident occurred. Strickland then went to an urgent care facility, where the doctor took some x-rays and gave him some anti-inflammatory pills. He returned to the same doctor a week later, at which time the doctor told

[692 F.3d 1156]

him an MRI was needed. Strickland was referred to an orthopedic surgeon, who ordered the MRI and eventually told him that his shoulder was “torn pretty bad” and that he had a “severed bicep tendon in [his] shoulder.” The surgeon recommended surgery, which Strickland subsequently underwent.

On September 20, 2010, Strickland filed suit against Norfolk Southern. In his complaint, he alleged two counts: Count I alleged a claim under the FELA, claiming that Norfolk Southern was negligent in failing to provide Strickland with safe and adequate equipment, tools, assistance, and the like. Count II alleged a claim under the FELA and the FSAA, claiming that the “inefficiencies” of the handbrake in question caused his injury and that Norfolk Southern was liable.9

After the parties conducted discovery, Norfolk Southern moved for summary judgment, contending that “there [was] insufficient evidence to support [Strickland's] claims.” In support of that contention, Norfolk Southern argued that Strickland could not “advance[ ] evidence that the [handbrake] was defective”; that Norfolk Southern “had actual or constructive knowledge that the [handbrake] in question was defective”; or that Strickland's injuries arose from Norfolk Southern's negligence. Moreover, Norfolk Southern argued that, “because [it] had no way to defend itself” against Strickland's claims because he could not identify the particular rail car on which he was injured, Strickland's case had to be dismissed.10

Strickland opposed summary judgment, contending that his evidence—namely, his testimony and that of his treating physician—demonstrated Norfolk Southern's liability under the FELA and the FSAA. Noting that an employee may recover under the FELA if his employer's negligence “played any part, even the slightest, in producing the injury or death for which damages are sought,” Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), Strickland argued that summary judgment is disfavored in FELA actions. See generally CSX Transp., Inc. v. McBride, 564 U.S. ––––, 131 S.Ct. 2630, 180 L.Ed.2d 637 (2011). Moreover, Strickland argued that the determining factor in his action was neither whether he could identify a “mechanical defect or broken part” in the handbrake at issue, nor whether he could identify the number of the car on which the handbrake was installed; instead, the issue was whether his testimony alone constituted sufficient evidence to survive summary judgment. He submitted a supporting affidavit in opposition to Norfolk Southern's motion for summary judgment.11

[692 F.3d 1157]

The district court granted summary judgment to Norfolk Southern. Although the court recognized the summary judgment standard and the “featherweight” burden of a FELA claim to withstand summary judgment, Dist. Ct. Order at 23 (quoting Diamond Offshore Management Co. v. Horton, 193 S.W.3d 76, 79 (Tex.App.2006)), it nonetheless held that Strickland's failure to “identify with any certainty the rail car that allegedly had the defective [handbrake],” Dist. Ct. Order at 28–29, would result in “the Court and the parties [ ] only specula[ting] about which rail car contained the allegedly defective [handbrake].” Id. at 33. Citing two non-binding cases in support, Tezak v. BNSF Railway Co., No. C09–0512BHS, 2010 WL 3211693, *1 (W.D.Wash. Aug. 12, 2010), and O'Neill v. BNSF Railway Co., No. A10–1987, 2011 WL 4008276 (Minn.Ct.App. Sept. 12, 2011), the district court held that such speculation could not demonstrate a genuine issue of material fact or satisfy the featherweight burden required under the FELA. Dist. Ct. Order at 27–34. Nowhere in its order did the...

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