RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0247p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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JAMES D. SZEKERES,
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Plaintiff-Appellant,
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No. 09-3835
v.
,
>
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Defendant-Appellee. -
CSX TRANSPORTATION, INC.,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 08-01153—Ann Aldrich, District Judge.
Argued: June 10, 2010
Decided and Filed: August 16, 2010
Before: GILMAN and WHITE, Circuit Judges; THAPAR, District Judge.*
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COUNSEL
ARGUED: Robert B. Thompson, HARRINGTON, THOMPSON, ACKER &
HARRINGTON, LTD., Chicago, Illinois, for Appellant. Joseph John Santoro,
GALLAGHER SHARP, Cleveland, Ohio, for Appellee. ON BRIEF: Robert B.
Thompson, Laurence C. Acker, HARRINGTON, THOMPSON, ACKER &
HARRINGTON, LTD., Chicago, Illinois, for Appellant. Joseph John Santoro, Holly M.
Olarczuk-Smith, GALLAGHER SHARP, Cleveland, Ohio, for Appellee.
*
The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
No. 09-3835 Szekeres v. CSX Transportation, Inc. Page 2
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OPINION
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HELENE N. WHITE, Circuit Judge. Plaintiff James Szekeres (Szekeres) appeals
from the district court’s order granting summary judgment to defendant CSX
Transportation, Inc. (CSX) in this action brought under the Federal Employers’ Liability
Act (FELA), 45 U.S.C. § 51 et seq., and the Locomotive Inspection Act (LIA), 49 U.S.C.
§ 20701. For the reasons set forth below, we REVERSE.
I
The district court summarized the facts:
Szekeres was hired as a brakeman for CSX on June 7, 1967. In
July 2005, Szekeres regularly worked on a local CSX freight operation
that runs from Cleveland, Ohio to Valley City, Ohio and back. The
operation includes multiple stops along the route. Szekeres was working
this route on the date of his injury.
On January 4, 2006, Szekeres reported to CSX’s Clark Avenue
office in Cleveland. The outdoor conditions were cold with a misting
rain, but not cold enough for snow and ice. Engineer Matthew Ashby
(“M. Ashby”), conductor Larry Ashby (“L. Ashby”), and trainmaster
John Whittenberger (“Whittenberger”) joined Szekeres as crew members
for part of that day’s run. Although a restroom was available at CSX’s
Clark Avenue office, Szekeres does not remember using the restroom at
that location. The train departed Cleveland with two locomotives, each
of which was equipped with a restroom, including a retention tank toilet.
From Cleveland to the first stop in Parma, Ohio, Szekeres rode on the
second locomotive while the rest of the crew rode on the lead
locomotive. Szekeres did not use the restroom located on the second
locomotive.
Once the train arrived in Parma, the crew removed the second
locomotive from the train, and Whittenberger departed with the removed
locomotive. A CSX office building with a restroom was available to
employees at the Parma stop, but Szekeres does not recall using the
restroom at that location. The train left Parma bound for Valley City
with Szekeres riding on the lead locomotive, which was the only
remaining locomotive. During the trip from Parma to Valley City,
No. 09-3835 Szekeres v. CSX Transportation, Inc. Page 3
Szekeres did not need to use the restroom and did not inspect the
locomotive’s restroom.
Once the train arrived in Valley View, the crew had to turn the
train around to return north to Cleveland. This process required a
member of the crew, here Szekeres, to exit the locomotive and throw the
switch to get the train back on the main line tracks. At some point
between arriving in Valley View and exiting the locomotive to switch the
track, Szekeres visually inspected the restroom on the locomotive.
Szekeres claims the restroom was unsanitary because of an unspecified
chemical odor and a dirty toilet seat, both of which prevented him from
using the restroom onboard the locomotive. Szekeres claims that he
alerted M. Ashby and L. Ashby as to the restroom’s condition, but there
is no evidence that either party checked the restroom.
After visually inspecting the locomotive’s restroom, Szekeres
exited the locomotive and walked to the switch. The walkway behind the
switch, where Szekeres stood to operate the switch, was muddy, and
Szekeres accumulated mud on his boots. He threw the switch and turned
to walk up an inclined embankment to privately relieve himself among
trees at the top. Like the walkway, the embankment was also muddy.
Szekeres slipped while ascending the embankment and twisted his knee,
allegedly injuring it. He claims that he slipped as a result of the mud that
had accumulated on his boot from the muddy walkway behind the
switch. He returned to the locomotive where he relieved himself next to
the tracks. Szekeres boarded the train, returned to the Clark Avenue
office, and reported the incident to a supervisor. He wrote a hand-written
statement on the date of the incident and filed an official incident report
six days later.
District Court Record Entry (R.) 31 at 1-3 (Dist. Ct. Memorandum & Order entered
7/2/09).
A
This court reviews a district court’s grant of summary judgment de novo.
Campbell v. Burlington Northern & Santa Fe Ry. Co., 600 F.3d 667, 671 (6th Cir. 2010).
Claims brought under the LIA, formerly the Boiler Inspection Act (BIA), are actionable
under the FELA. The FELA, 45 U.S.C. § 51, provides in pertinent part:
Every common carrier by railroad while engaging in commerce between
any of the several States or Territories . . . shall be liable in damages to
any person suffering injury while he is employed by such carrier in such
No. 09-3835 Szekeres v. CSX Transportation, Inc. Page 4
commerce . . . 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, or by reason of any defect or insufficiency, due to its negligence,
in its . . . engines, . . . track, roadbed, . . . or other equipment.
Also relevant to our analysis is the explanation of FELA liability found in Randy
J. Sutton, Annotation, Construction and Application of Federal Employers’ Liability Act
(FELA), §§ 1 et seq., 45 U.S.C.A. §§ 51 et seq.– U.S. Supreme Court Cases, 29 A.L.R.
FED. 2D 1, § 2 (2008):
Contributory negligence of an injured employee under FELA does not
preclude a judgment for the employee, but the damages are to be
diminished by the jury in proportion to the amount of negligence
attributable to such employee, but no such employee shall be held to
have been guilty of contributory negligence in any case where the
common carrier shall have violated any statute enacted for the safety of
employees that contributed to the injury or death of such employee (45
U.S.C.A. § 53). Similarly, assumption of risk is not a bar to recovery
where the injury resulted in whole or in part from the carrier’s negligence
or where the injury or death resulted from the violation of a safety statute
by the carrier (45 U.S.C.A. § 54). . . .
....
In several cases the [Supreme] Court decided that violations of
the Safety Appliance Acts, Boiler Inspection Act [now the LIA], and
other statutes intended to promote safety were actionable under FELA,
in some cases without any proof of negligence, and application of those
Acts operated to prevent the defense of contributory negligence in FELA
actions . . . .
B
The LIA, 49 U.S.C. § 20701 et seq., provides in pertinent part:
§ 20701. Requirements for use
A railroad carrier may use or allow to be used a
locomotive . . . on its railroad line only when the
locomotive . . . and its parts and appurtenances --
(1) are in proper condition and safe to operate without
unnecessary danger of personal injury;
No. 09-3835 Szekeres v. CSX Transportation, Inc. Page 5
(2) have been inspected as required under this chapter
and regulations prescribed by the Secretary of
Transportation under this chapter; and
(3) can withstand every test prescribed by the Secretary
under this chapter.
A violation of the LIA is negligence per se under the FELA. Mickler v. Nimishillen and
Tuscarawas Ry. Co., 13 F.3d 184, 188 (6th Cir. 1993) (citing Urie v. Thompson, 337
U.S. 163, 188-89 (1949)).
49 C.F.R. § 229.137 requires that locomotives be equipped with a sanitation
compartment/toilet facility that is adequately equipped. 49 C.F.R. § 229.139(a) requires
that the sanitation compartment of all lead locomotives in use be sanitary. Section 229.5
sets forth definitions of “sanitary” and “unsanitary”:
Sanitary means lacking any condition in which any significant amount
of filth, trash, or human waste is present in such a manner that a
reasonable person would believe that the condition might constitute a
health hazard; or of strong, persistent, chemical or human waste odors
sufficient to deter use of the facility, or give rise to a reasonable concern
with respect to exposure to hazardous fumes. Such conditions include,
but are not limited to, a toilet bowl filled with human waste, soiled toilet
paper, or other products used in the toilet compartment, that are present
due to a defective toilet facility that will not flush or otherwise remove
waste; visible human waste residue on the floor or toilet seat that is
present due to a toilet that overflowed; and accumulation of soiled paper
towels or soiled toilet paper on the floor, toilet facility, or sink; an
accumulation of visible dirt or human waste on the floor, toilet facility,
or sink; and strong, persistent chemical or human waste odors in the
compartment.
...
Unsanitary means having any condition in which any significant amount
of filth, trash, or human waste is present in such a manner that a
reasonable person would believe that the condition might constitute a
health hazard; or strong, persistent, chemical or human waste odors
sufficient to deter use of the facility, or give rise to a reasonable concern
with respect to exposure to hazardous fumes. Such conditions include,
but are not limited to, a toilet bowl filled with human waste, soiled toilet
paper, or other products used in the toilet compartment, that are present
due to a defective toilet facility that will not flush or otherwise remove
No. 09-3835 Szekeres v. CSX Transportation, Inc. Page 6
waste; visible human waste residue on the floor or toilet seat that is
present due to a toilet that overflowed; an accumulation of soiled paper
towels or soiled toilet paper on the floor, toilet facility, or sink; an
accumulation of visible dirt or human waste on the floor, toilet facility,
or sink; and strong, persistent chemical or human waste odors in the
compartment.
49 C.F.R. § 229.5.
C
The district court concluded that Szekeres’s allegations did not establish a breach
of CSX’s absolute duty under the LIA, noting that
Szekeres’ general allegations concerning the condition of the restroom
fail to establish the existence of a CFR violation . . . . Without specific
statements of fact supporting his allegations, Szekeres has failed to create
a genuine issue of material fact. See Barry v. CSX Transp., Inc., No.
5:05CV2073 (N.D. Ohio Oct. 13, 2006) (finding that plaintiff’s mere
assertion that a locomotive engine was improper and unsafe was not
enough to withstand summary judgment).
R. 31 at 7.
Szekeres asserts that he presented a viable claim under both the LIA and 49
C.F.R. §§ 229.137 and 229.139 because his deposition testimony established that the
locomotive’s sanitation facility was unsanitary as defined in the CFR. He contends that
had CSX provided a sanitary toilet facility, he would have used it, thus obviating the
need to urinate outside, which led him to slip on the incline and injure his knee.
Szekeres contends that the district court failed to view the facts in a light most favorable
to him by not considering his uncontradicted deposition testimony regarding the
condition of the toilet facility.
No. 09-3835 Szekeres v. CSX Transportation, Inc. Page 7
1
This court noted in Richards v. Consolidated Rail Corp., 330 F.3d 428, 437 (6th
Cir. 2003):
Courts in . . . FELA and BIA [predecessor to the LIA] cases . . . should
focus on whether a reasonable jury could conclude that the defective
appliance played any part, even the slightest, in bringing about the
plaintiff’s injury. This means that if a reasonable jury could find that the
plaintiff’s injury “was within the risk created by” the defective appliance,
the plaintiff’s right to a jury trial should be preserved. For example, if as
a result of a defective appliance a plaintiff is required to take certain
actions and he or she is injured while taking those actions, the issue of
causation generally should be submitted to a jury.
We agree with Szekeres that the district court failed to view the facts and
reasonable inferences therefrom in his favor. Szekeres testified that the locomotive toilet
facility was “dirty” and “unusable,” was “Just dirty and smelly . . . they’re old
locomotives and they’re not kept up,” that the toilet seat was “dirty,” and that “[y]ou
have a chemical smell. It’s just not a nice place and you don’t know what you can catch
out of it.” Szekeres did not simply describe the toilet facility as “unusable.” Rather, he
provided two specific details: 1) that the toilet seat was dirty, and 2) that there was a
chemical smell. The first detail gives rise to an inference that there was “a significant
amount of filth, trash, or human waste” present such that a reasonable person might
believe it constituted a health hazard, particularly when read in tandem with Szekeres’s
statement that “you don’t know what you can catch out of it.” The second detail
supports the conclusion that there was a “strong, persistent, chemical . . . odor sufficient
to deter use of the facility,” given that Szekeres chose not to use the onboard toilet
facility and instead opted to urinate outside.
Szekeres’s testimony is sufficient to create a genuine issue of material fact. See
Myers v. Reading Co., 331 U.S. 477, 483 (1947) (holding that a plaintiff’s testimony
about the inefficiency of railroad equipment “is such substantial evidence of inefficiency
as to make an issue for the jury.” (citation omitted)); Richards, 330 F.3d at 433 (“Trial
judges should not rule out plaintiffs’ opinions as to why appliances functioned
No. 09-3835 Szekeres v. CSX Transportation, Inc. Page 8
inefficiently, where the plaintiffs’ opinions are based on their experience and perceptions
at the time of their accident.”).
The district court properly observed that Federal Railroad Administration
regulations allow for use of chemicals to clean sanitation compartments. See 49 C.F.R.
§ 229.139(b)(3). But to conclude that the chemical smell Szekeres testified to was from
a cleaning chemical requires weighing the evidence and construing inferences contrary
to Szekeres’s testimony, neither of which is permitted at the summary judgment stage.
The district court’s observation that the toilet facility was inspected on December 10,
2005, and January 10, 2006, and that no problems were noted, is likewise not outcome
determinative at the summary judgment stage. These inspections do not definitively
establish the condition of the locomotive toilet facility on January 4, 2006, the day of the
accident. We thus conclude that Szekeres provided sufficient evidence to survive
summary judgment on the issue whether the toilet facility was sanitary.
2
CSX asserts that even if Szekeres had established a defect with the toilet facility,
the causal connection between the alleged defect and injury is “too tenuous to impose
absolute liability upon CSX as a matter of law.” CSX maintains that although Szekeres
could have urinated anywhere in the rural area and admitted that his job duties did not
require that he walk up the incline, he chose to walk up a “real soft” muddy incline to
get to a more private area.
On the question of causation, courts “focus on whether a reasonable jury could
conclude that the defective appliance played any part, even the slightest, in bringing
about the plaintiff’s injury.” Richards, 330 F.3d at 437 (emphasis in original). Although
this is a close question, we conclude that there is a sufficient factual basis for a
reasonable jury to conclude that Szekeres’s injury “was within the risk created by” the
unsanitary toilet facility. With the toilet facility being “unusable,” Szekeres had no
available indoor facility and was left to relieve himself outside. As James Arton,
Szekeres’s expert, stated in his affidavit, railroad employees typically “walk[] up the
incline to seek privacy to relieve [themselves]” when other “toilet facilities are
No. 09-3835 Szekeres v. CSX Transportation, Inc. Page 9
unavailable.” Szekeres testified that he slipped from accumulated mud on his boots
from both the area behind the switch and from climbing the embankment, so there is a
direct tie between his inability to use the onboard toilet facility and his accident.
We thus conclude that the district court improperly granted summary judgment
on Szekeres’s LIA and C.F.R. claim.
II
Szekeres argued below that on January 4, 2006, he was assigned to work as a
conductor and required to walk on the ground to operate railroad ground switches, that
he sustained injury after being caused to step in mud, and that CSX thereby breached its
duty to provide him with a reasonably safe place to work. Szekeres asserted that CSX
was also negligent in failing to use reasonably safe methods and procedures with regard
to maintenance of the ground area where he was required to walk in performing his
duties, in failing to properly inspect the area alongside the track when ordinary
inspection would have disclosed that mud was present which could have been properly
covered with walking ballast, and in failing to cover the mud with walking ballast when
CSX knew or should have known and foreseen that trainmen like him would be in
jeopardy of injury while performing their duties working in the area.
A
CSX’s summary judgment motion argued that it did not have notice of the
allegedly unsafe working condition (mud around the switch Szekeres was operating and
working around on January 4, 2006) and thus Szekeres’s injury was not foreseeable.
The district court agreed and granted CSX summary judgment, concluding that Szekeres
failed to establish a prima facie case of negligence under the FELA. See Adams v. CSX
Transp., Inc., 899 F.2d 536, 539 (6th Cir. 1990) (holding that a FELA plaintiff asserting
a cause of negligence against his employer must “prove the traditional common law
elements of negligence: duty, breach, foreseeability, and causation”); Miller v.
Cincinnati, New Orleans & Tex. Pac. Ry. Co., 317 F.2d 693, 695 (6th Cir. 1963)
No. 09-3835 Szekeres v. CSX Transportation, Inc. Page 10
(holding that actual or constructive notice to the railroad must be established under the
FELA).
B
The law is clear that notice under the FELA may be shown from facts permitting
a jury to infer that the defect could have been discovered by the exercise of reasonable
care or inspection:
Under familiar law, defendant could not be convicted of negligence,
absent proof that such defect was known, or should or could have been
known, by defendant, with opportunity to correct it. 56 C.J.S. Master
and Servant § 244, p. 1000. Carnegie Steel Co. v. Byers, 149 F.667, 669
(C.A. 6, 1907); Atlantic Coast Line R. Co. v. Collins, 235 F.2d 805, 809
(C.A. 4, 1956) []. This rule is applicable to FELA actions where
negligence is essential to recovery. The establishment of such an
element, however, may come from proof of facts permitting a jury
inference that the defect was discovered, or should have been discovered,
by the exercise of reasonable care or inspection. 56 C.J.S. Master and
Servant § 248, p. 1002. . . .
Miller, 317 F.2d at 695 (some internal citations omitted). The district court properly
noted that notice under the FELA may be either actual or constructive; however, it did
not address Szekeres’s argument and proofs supporting his contention that CSX had
constructive notice of the allegedly unsafe conditions around the switch he operated and
worked around on January 4, 2006.
C
Szekeres contends that the evidence viewed in a light most favorable to him
clearly establishes a triable issue of material fact as to whether CSX knew that: 1) there
was a long-standing mud condition in the vicinity of the Valley City switch; 2) mud is
recognized as a slipping hazard in the railroad industry; 3) walkway stone should be used
to cover dirt in the ground areas around switches; and 4) company rules required
Szekeres to be standing 10 or 30 feet behind the Valley City Switch, in an obvious area
of dirt and mud. Szekeres contends that these facts alone established that CSX knew or
should have known of the unsafe ground conditions that led to his injury.
No. 09-3835 Szekeres v. CSX Transportation, Inc. Page 11
We agree with Szekeres that he presented sufficient evidence of the first three
points. Photos of the switch and surrounding areas, some of which were taken on the
same day that Szekeres was injured, depict that there was some walking stone on the
ground on either side of the switch (in the walkway area parallel to the track, which
several CSX supervisory employees testified was, indeed, a walkway used by railroad
employees), but very little behind the switch, where Szekeres actually stood while
working and from where he testified that mud accumulated on his boots that contributed
to him slipping on the incline and injuring his knee. Various CSX supervisory
employees testified that the area behind the switch was mostly dirt, with little walking
stone. It is undisputed that on January 4, 2006, the temperature was in the 40s and that
it had been raining/misting all day. Trainmaster Whittenberger, Szekeres’s supervisor,
testified that he had been in the vicinity of the switch within 90 days before Szekeres’s
injury, and that the area looked the same as it did on January 4, 2006, when Szekeres
was injured.
On the second point, several CSX supervisors testified that mud is, or can be, a
slipping hazard, as did Szekeres. It is clear that Szekeres had to stand in the area behind
the switch to perform his work responsibilities--throwing the switch.
On the third point, the report of James Arton, Szekeres’s expert,1 stated:
CSXT failed in its non-delegable duty to use ordinary care to provide
Szekeres with a reasonably safe place to work. CSXT is required to
provide Szekeres with a reasonably safe place to work and is required to
correct unsafe conditions and practices.
CSXT failed to maintain the area in the vicinity of the mainline
switch to Liverpool Coil at Valley City, Ohio in a safe condition. The
location where Szekeres’s duties required him to walk, stand and operate
the switch was not provided with proper walking stone to eliminate the
mud condition that existed at the locations where Szekeres was required
to perform service in the normal course of his duties. Szekeres stated
1
Arton has more than 30 years of experience as a railroad operations manager, including
experience in railroad operations and safety. His experience includes positions as yardmaster, trainmaster,
and terminal superintendent, and he is familiar with railroad industry standards regarding use of ballast in
the ground areas surrounding railroad switches, as well as common behavior of train service employees
assigned to industrial switching. R. 23-6 at 1-2 (Arton affidavit).
No. 09-3835 Szekeres v. CSX Transportation, Inc. Page 12
(Szekeres deposition page 29, lines 1-14 and photographs) that his boots
became encrusted with mud at this location and when he attempted to
walk up the slight incline the muddy boots contributed to his injury.
Szekeres walking up the incline to seek privacy to relieve himself
is reasonable and consistent when an employee in the field needs to
relieve themselves [sic] and toilet facilities are unavailable.
CSXT should have identified and corrected the unsafe condition
at the switch that caused the injury to Szekeres, his injury could have
been prevented. [R. 24-6 at 2.]
Szekeres thus presented sufficient evidence of CSX’s constructive notice of the muddy
conditions surrounding the switch to survive summary judgment.
For the foregoing reasons, we REVERSE and REMAND to the district court for
further proceedings consistent with this opinion.