RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0471p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff - Appellant, -
ELMER VAN GORDER,
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No. 06-2451
v.
,
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GRAND TRUNK WESTERN RAILROAD, INC., a -
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Defendant-Appellee. -
division of Canadian National,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 05-70380—Gerald E. Rosen, District Judge.
Argued: September 17, 2007
Decided and Filed: December 11, 2007
Before: BATCHELDER and GILMAN, Circuit Judges; VARLAN, District Judge.*
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COUNSEL
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.
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OPINION
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ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Elmer Van Gorder (“Van
Gorder”) appeals the district court’s 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.
*
The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of Tennessee, sitting
by designation.
1
No. 06-2451 Van Gorder v. Grand Trunk Western Railroad Page 2
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 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.
No. 06-2451 Van Gorder v. Grand Trunk Western Railroad Page 3
P. 56(c). We must review all the evidence, facts, and inferences in the light most favorable to the
nonmoving party. Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (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., 447 U.S. 242, 252 (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 (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).
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 pertinent part:
Every common carrier by railroad while engaging in commerce . . . shall be liable
in damages to any person suffering injury while he is employed by such carrier in
such 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 cars, engines, appliances,
machinery, track, roadbed, works, boats, wharves, or other equipment.
45 U.S.C. § 51. The statute contains a negligence standard. Consequently, to survive Grand
Trunk’s motion for summary judgment, Van Gorder needed to present evidence sufficient to raise
a genuine issue of material fact as to every element of his negligence claim. Celotex, 477 U.S. at
322.
In order to present a prima facie case under FELA, Van Gorder must prove that: (1) he was
injured within the scope of his employment; (2) his employment was in furtherance of Grand
Trunk’s interstate transportation business; (3) that Grand Trunk was negligent; and (4) that Grand
Trunk’s negligence played some part in causing the injury for which he seeks compensation under
FELA. Green v. River Terminal Ry. Co., 763 F.2d 805, 808 (6th Cir. 1985) (internal citations
omitted); see also Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 330 (1958).
We will view the evidence in the light most favorable to Van Gorder, the nonmoving party.
It is undisputed that Van Gorder injured his shoulder during the course of his employment, and he
was furthering Grand Trunk’s interstate transportation business in preparing the railcars for loading
and transport. Therefore, Van Gorder has satisfied the first two of the required FELA elements. The
fatal flaw in Van Gorder’s complaint, however, is that he cannot show that Grand Trunk was
negligent.
To succeed on his FELA claim, Van Gorder must “prove the traditional common law
elements of negligence; duty, breach, foreseeability, and causation.” Adams v. CSX Transportation,
Inc., 899 F.2d 536, 539 (6th Cir. 1990) (quoting Robert v. Consolidated Rail Corp., 832 F.2d 3, 6
(1st Cir. 1987)); Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 258 (6th Cir. 2001). Van Gorder
correctly contends that FELA relaxes a plaintiff’s standard of proof regarding causation. Rogers v.
Missouri Pacific RR. Co., 352 U.S. 500, 506 (1957) (ruling for the plaintiff-employee and stating
that, under FELA, the “test of a jury case is whether the proofs justify with reason the conclusion
No. 06-2451 Van Gorder v. Grand Trunk Western Railroad Page 4
that employer negligence played any part, even the slightest, in producing the injury.”). Therefore,
if Grand Trunk were negligent, Van Gorder need only show that its negligence contributed even
slightly to his injury. But, contrary to Van Gorder’s assertions, the relaxed causation standard under
FELA does not affect his obligation to prove that Grand Trunk was in fact negligent. Perkins v.
American Elec. Power Fuel Supply, Inc., 246 F.3d 593, 598-99 (6th Cir. 2001).1 FELA does not
lessen a plaintiff’s burden to prove the elements of negligence.
Under FELA, a railroad has a duty to provide its employees with a reasonably safe
workplace; this does not mean that a railroad has the duty to eliminate all workplace dangers, but
only the “duty of exercising reasonable care to that end.” Baltimore & Ohio S. W. R. Co. v. Carroll,
280 U.S. 491, 496 (1930). Grand Trunk does not dispute that it had a duty to exercise reasonable
care to protect Van Gorder, an employee. Thus, Van Gorder established the duty component of the
negligence standard. Van Gorder cannot, however, show that Grand Trunk breached that duty.
A railroad breaches its duty to its employees when it fails to use ordinary care under the
circumstances or fails to do what a reasonably prudent person would have done under the
circumstances to make the working environment safe. Tiller v. Atlantic C. L. R. Co., 318 U.S. 54,
67 (1943); Aparicio v. Norfolk & W. Ry., 84 F.3d 803, 811 (6th Cir. 1990). That is, a railroad
breaches its duty when it “‘knew, or by the exercise of due care should have known’ that prevalent
standards of conduct were inadequate to protect [the plaintiff] and similarly situated employees.”
Aparicio, 84 F.3d at 811 (quoting Urie v. Thompson, 337 U.S. 163, 178 (1949)). A railroad must
act reasonably and use ordinary care to protect its employees.
Van Gorder specifically alleges that Grand Trunk’s pre-trip inspections were not reasonable
and that by performing only those inspections, Grand Trunk breached its duty of care. Van Gorder
contends that the manner in which the visual inspections were performed was not thorough enough
to reveal the defective bolt, and that the pre-trip inspection was not undertaken with ordinary care
because it did not include closing the clamshell doors, which would have exposed the defect. In
attempting to prove that Grand Trunk’s pre-trip inspections were unreasonable, Van Gorder relies
almost exclusively on the sworn affidavit of his purported expert, Michael Micek (“Micek”). But
Micek did not inspect the door of the railroad car at issue, nor does he state in his affidavit that he
has any particular familiarity with either the type of car or the type of door at issue. He fails to point
to any standard of care to which Grand Trunk failed to conform and he does not explain what kind
of inspection would have been reasonable. Micek’s affidavit simply makes the conclusory statement
that Grand Trunk did not act reasonably because in its pre-trip inspections, it did not discover the
defective bolt.
Van Gorder first claims that Grand Trunk would have discovered the defect if it had viewed
the door from the roof of the railcar. In his affidavit, Micek claims that Grand Trunk employees
could have climbed the ladder on the side of the rail car to its “upper most height” and seen the
defect in the bolt. But Micek did not actually see the car, or climb the ladder. Jacques — who
personally inspected the car — testified at his deposition that he could not see the defect in the bolt
either from above the car or from the ground below. Furthermore, Jacques stated that it would be
dangerous for an employee to climb the ladder to its upper-most heights without the proper safety
equipment. There is no question that Jacques has substantial experience in dealing with the bi-level
auto carrier railcars with clamshell doors, like the one in question. Nothing in the record establishes
that Micek has any such experience.
1
Perkins was decided under the Jones Act, 46 U.S.C. § 688. The court, however, stated that the Jones Act
simply provides for seamen parallel rights that FELA provides railroad employees. Perkins, 246 F.3d at 598.
No. 06-2451 Van Gorder v. Grand Trunk Western Railroad Page 5
Most significant here, however, was Micek’s inability to explain what would have
constituted a proper inspection. Micek provided no specific information to explain why Grand
Trunk’s inspection was not reasonable. He provided no evidence to dispute Grand Trunk’s specific,
first-hand testimony that the defective bolt was not visible from any angle, and that to observe the
defect, Grand Trunk had to take the door apart. Van Gorder cannot raise a genuine issue of fact
regarding the reasonableness of Grand Trunk’s inspection by suggesting that it should have used a
different method to perform the inspection, when the method he advocates would not have revealed
the defect that led to his injury.
Van Gorder next claims that Grand Trunk merely had to close the door to discover the
defect; that closing the doors during the pre-trip inspection would be very easy for Grand Trunk; and
that failure to do so made the pre-trip inspection unreasonable. We need not decide what might be
easy for the railroad, nor need we indulge Grand Trunk’s hypothetical assertions that, in this case,
closing the door during the pre-trip inspection might simply “have provided us with a different
plaintiff.” We must decide only whether Grand Trunk conducted a reasonable inspection and
exercised ordinary care. Van Gorder has not presented evidence and the record does not contain
evidence sufficient to permit a reasonable jury to find that Grand Trunk’s failure to require closing
the door as part of the pre-trip inspection of the car made that inspection unreasonable.
Jacques testified that the pre-trip inspectors would ordinarily recognize a problem with the
door upon opening it. Van Gorder himself testified that he had never encountered a door with a
defect like the one in question, and that if a door were going to be defective, he “would usually know
in the first few inches” of closing it. Van Gorder agreed that the door in question was unusual, and
he presented no evidence that Grand Trunk knew or had reason to know of the particular defect in
the door or that such a defect would cause the injury Van Gorder sustained. In short, Van Gorder
presented no evidence from which a jury could find that Grand Trunk did not exercise ordinary care
in performing the pre-trip inspection of the railroad cars, or that its method of pre-trip inspection
of the cars was unreasonable.
Under FELA, the “test of a jury case is simply whether the proofs justify with reason the
conclusion that employer negligence played any part . . . in producing the injury.” Gallick v.
Baltimore & Ohio R.R. Co., 372 U.S. 108, 116 (1963); Rogers, 352 U.S. at 506. If the record
contains evidence from which the court could draw the conclusion that the employer’s negligence
played any part in the plaintiff’s injury then it must send the case to the jury, even if the evidence
would also allow the jury to find for the employer. Id. at 116-17. But a plaintiff cannot benefit from
FELA’s relaxed causation standard unless he can prove that the employer was negligent in the first
place, and this Van Gorder has wholly failed to do.
The record in this case does not contain evidence sufficient to preserve a genuine issue of
fact material to an element of Van Gorder’s claim, namely, that Grand Trunk was negligent in its
inspection of the car door. In the absence of that evidence, summary judgment for Grand Trunk was
appropriate. Celotex, 477 U.S. at 322; see also Hartsel, 87 F.3d at 799.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.