I respectfully dissent. The evidence presented by Rogers is more than sufficient to satisfy the federal “more than a mere scintilla” standard.
Under the federal standard, applied alike at trial and on review, the evidence and all reasonable inferences from it are assessed in the light most favorable to the non-moving party ... and the credibility of all evidence favoring the non-moving party is assumed----Assessed in this way, the evidence must then be ‘of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment could reasonably return a verdict for the non-moving party....’ A ‘mere scintilla of evidence’ is not sufficient to withstand the challenge.
Crinkley v. Holiday Inns, 844 F.2d 156, 160 (4th Cir.1988) (internal citations omitted).
A scintilla is defined as “a trace” of evidence. Black’s Law Dictionary 1347 (7th ed.1999).
The majority concludes Norfolk Southern was not negligent in dispatching Rogers to inspect the site. I agree. The mere dispatch of Rogers to the site was not negligent.
In my opinion, however, Norfolk Southern was negligent in failing to provide Rogers with a safe place to work. As noted by the majority, Norfolk Southern had a non-delegable duty to provide Rogers a safe place to work, even when Rogers was working on the property of a third party. See Norfolk Southern Ry. Co. v. Trimiew, 253 Ya. 22, 480 S.E.2d 104 (1997); McGraw v. Norfolk & Western Ry. Co., 201 W.Va. 675, 500 S.E.2d 300 (1997); Schrier v. Indiana Harbor Belt R. Co., 102 Ill.App.3d 855, 58 Ill.Dec. 262, 430 N.E.2d 204 (1981).
*96Viewing the testimony and its inferences in the light most favorable to Rogers as we are required to do, Norfolk Southern was negligent in failing to provide a safe place for Rogers to perform his work. Norfolk Southern’s non-delegable duty required it inspect the premises within the area of its responsibility for conditions injurious to its employees. This duty necessarily required it be aware of conditions adjacent to the tracks which posed an immediate potential of danger to its employees. This Norfolk Southern failed to do.
The convex hole created beneath the Norfolk Southern tracks resulted from the rupture of slurry pipes which ran beneath the tracks. The pipes were visible going into the ground adjacent to the track and emerging from the ground on the opposite side of the track. Although the installation of the pipes was not disclosed to Norfolk Southern, the pipes were not concealed from view. Photographs and witness testimony show the entry of the slurry pipes into the ground twenty feet from the spur track. It was clearly foreseeable that a dangerous condition existed adjacent to Norfolk Southern’s tracks.
In my opinion, more than a mere scintilla, a trace, of evidence was introduced establishing Norfolk Southern knew or, in the exercise of ordinary care, should have known the conditions at Silica posed a danger to its employees. Accordingly, under FELA standards, Rogers is entitled to prevail. Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) (under FELA, an employee prevails if he establishes “that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.”).
The majority opines no fair, impartial, and reasonable juror could have returned a verdict against Norfolk Southern. The record, however, is devoid of evidence the jury which returned the verdict against Norfolk Southern was unfair, partial, or unreasonable. Instead, Rogers presented this jury more than a mere scintilla of evidence Norfolk Southern breached its non-delegable duty, resulting in injury to him.
I would REVERSE the Court of Appeals’ decision.
WALLER, J., concurs.