Van Gorder v. Grand Trunk Western R.R., Inc., No. 06-2451.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Alice M. Batchelder
• Citation: 509 F.3d 265
• Parties: Elmer VAN GORDER, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD, INC., a division of Canadian National, Defendant-Appellee.
• Docket Number: No. 06-2451.
• Decision Date: 11 December 2007

509 F.3d 265 Elmer VAN GORDER, Plaintiff-Appellant,
v.
GRAND TRUNK WESTERN RAILROAD, INC., a division of Canadian National, Defendant-Appellee. No. 06-2451. United States Court of Appeals, Sixth Circuit. Argued: September 17, 2007. Decided and Filed: December 11, 2007.

[509 F.3d 266]

ARGUED: Steven L. Kantor, Kantor & Godwin, Williamsville, New York, for Appellant. Richard A. Dietz, Foster, Meadows & Ballard, Detroit, Michigan, for Appellee. ON BRIEF: Steven L. Kantor, Kantor & Godwin, Williamsville, New York, for Appellant. Richard A. Dietz, Foster, Meadows & Ballard, Detroit, Michigan, for Appellee.

Before BATCHELDER and GILMAN, Circuit Judges; VARLAN, District Judge.^*

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Plaintiff-Appellant Elmer Van Gorder ("Van Gorder") appeals the district court's

509 F.3d 267

order granting summary judgment in favor of Defendant-Appellee Grand Trunk Western Railroad ("Grand Trunk") in this negligence action filed pursuant to the Federal Employer's Liability Act ("FELA"), 45 U.S.C. § 51, et seq. Van Gorder claims that the district court erred in finding that there were no genuine issues of material fact regarding the reasonableness of Grand Trunk's railcar inspections and that he had not established a prima facie negligence case. Finding no merit in Van Gorder's contentions, we AFFIRM.

I. BACKGROUND

Van Gorder began working at Grand Trunk on July 22, 1970, more than 33 years prior to the incident in question, which occurred on October 17, 2003. Grand Trunk initially hired Van Gorder as a T-carman. From 1981 until the time of the incident, Van Gorder served as a carman at the General Motors loading dock on David Road, at Grand Trunk's Flint Yard in Flint, Michigan.

Van Gorder's main task on the day of the incident was to remove bridge plates between the loaded bi-level railroad cars and close the doors of the cars to prepare them for transport. Prior to this preparation and consistent with the railroad's usual practice, other Grand Trunk employees conducted two inspections of the railcars on which Van Gorder worked. Those "pre-trip" inspections are intended to discover defects in the cars and entail, among other things, looking at the doors to see visible problems, and opening, but not closing the doors.

In the course of his duties, Van Gorder attempted to close the "clamshell door" on one of the railcars. The door closed about halfway, or two to three feet, and then abruptly stopped, causing Van Gorder to stumble and his hands to slip off the door handle, resulting in an injury to his shoulder. Van Gorder is currently receiving approximately $2,600 per month in Railroad Retirement Disability because of his shoulder injury, for which he had replacement surgery on August 17, 2004.

Following the incident, Van Gorder immediately reported his injury to his superiors, then went to the hospital for examination. Robert F. Miller, Car Foreman, John P. Jacques ("Jacques"), Mechanical Department Supervisor and Technical Officer — Pool Operations, Ron Lord, Flint Assistant Superintendent, Hunt Carey, Flint Superintendent, and David Cromie, Risk Mitigation Officer, all inspected the railcar after Van Gorder returned from the hospital. Van Gorder was present for at least some of the inspection.

During the inspection, the Grand Trunk employees determined — through the process of elimination — that the canopy bolt on top of the AR door, which at least partially controlled the door's movement, was worn. Although the door opened properly, because of the condition of the bolt, the door would "hang up" and become stuck while it was being closed.

The defective bolt — or, at least, the defective condition of the bolt — was not visible from the ground. After the incident, Jacques got into a man-lift machine and viewed the door and bolt from above. The wear on the bolt was not visible from this vantage point either, because it was in an area "sandwiched between the roof and the canopy." That is, the defect would only manifest itself when someone attempted to close the door, and was only visible when the top portion of the door was taken apart. An inspection from above, either in a man-lift machine or from the ladders on the sides of the railcar, would not reveal the defect. Moreover, Grand Trunk does not allow its employees to climb up the

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ladders to the roof of the railcar without the proper safety equipment.

Van Gorder filed this negligence action against Grand Trunk on February 2, 2005, pursuant to FELA, 45 U.S.C. § 51, et seq. On September 27, 2006, the district court issued its opinion and order granting summary judgment in favor of Grand Trunk, concluding that no genuine issue of material fact remained for trial and that Van Gorder had failed to produce evidence from which a jury could find that Grand Trunk was negligent. Van Gorder timely filed this appeal.

II. STANDARD OF REVIEW

We review de novo a district court's grant of summary judgment, using the same standard applied by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, 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." Fed.R.Civ.P. 56(c). We must review all the evidence, facts, and inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In order to defeat a summary judgment motion, the nonmoving party must "show sufficient evidence to create a genuine issue of material fact." Prebilich-Holland v. Gaylord Entm't Co., 297 F.3d 438, 442 (6th Cir.2002) (citing Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir.1990)). The nonmoving party must provide more than a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). That is, the nonmoving party must present sufficient evidence to permit a reasonable jury to find in that party's favor. Id. Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); See also Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996). The party bearing the burden of proof must present a jury question as to each element of its case. Hartsel, 87 F.3d at 799 (citing Celotex, 477 U.S. at 322, 106 S.Ct. 2548).

III. ANALYSIS

Van Gorder sued Grand Trunk under FELA, specifically alleging that Grand Trunk conducted an unreasonable and negligent inspection of a railcar that directly resulted in his injury. FELA provides in...