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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10864
Non-Argument Calendar
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D.C. Docket No. 4:13-cv-00307-HLM
CHRISTOPHER GARY SWOOPE,
Plaintiff-Appellant,
versus
CSX TRANSPORTATION, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 21, 2016)
Before WILLIAM PRYOR, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
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Christopher Swoope, a train engineer for CSX Transportation, Inc. (“CSX”),
brought a claim against CSX under the Federal Employers Liability Act (“FELA”),
45 U.S.C. § 51 et seq., after the train he was working on hit a tree that had fallen
across the tracks. The district court granted partial judgment as a matter of law in
favor of CSX on Swoope’s negligence per se claim, and allowed Swoope’s
remaining claim of ordinary negligence to go to a jury. The jury found in favor of
CSX on that claim. Our careful review of the record persuades us to affirm the
district court.
I.
Christopher Swoope was an engineer for CSX. On April 28, 2013, he was
working as the engineer for a train going from Etowah, Tennessee to Manchester,
Georgia. Another train had gone down the same tracks two hours earlier.
However, when Swoope’s train approached Ranger, Georgia, Swoope saw
something on the tracks that looked to him like a bush. It wasn’t a bush though—it
was a newly fallen live tree. The train’s conductor testified that it was a “huge
tree,” and he feared it might come through the windshield when the train hit it.
Swoope shared that fear. He thought about hitting the emergency brakes on
the train, but did not do so because of the heavy rain earlier that day. The tracks
were wet, his train was on a curve, and he thought applying the emergency brakes
might cause the train to derail. About three seconds before hitting the tree he
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decided to put the train in the first service break position to slow it down and he
got up from his seat to get onto the floor in case part of the tree did come through
the windshield. While getting up, Swoope fell on his side, and he stayed there on
the floor until impact. The train collided with the tree, bending its grab irons, but it
did not derail.
Swoope did not report any physical injuries immediately after the accident.
By the time he arrived in Manchester, Georgia, he had a mild headache that he
thought little of. Over the next two days though, he testified that he started
experiencing painful back spasms. He reported them to his supervisor at CSX,
who took him to get medical treatment. Eventually, Swoope got back surgery to
mitigate the pain and returned to work. He continues to experience some back pain
from time to time though with varying intensity.
Swoope then brought this suit against CSX under FELA, 45 U.S.C. § 51 et
seq., a federal statute that imposes liability on railroad common carriers for any
employee’s injury caused by the carrier’s negligence. See 45 U.S.C. § 51.
Swoope alleged both ordinary negligence and negligence per se, based on
violations of duties imposed by the Federal Railroad Administration (“FRA”)
regulations. Swoope filed his case in the Eastern District of Tennessee, but the
parties jointly moved to transfer the case to the Northern District of Georgia, Rome
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Division under 28 U.S.C. § 1404(a) because the accident happened in that judicial
district.
Before trial, Swoope sought partial summary judgment on liability for a
violation of 49 C.F.R. § 213.37 (“vegetation regulation”) but was denied by the
district court. A jury trial took place from February 22–24, 2016. After the parties
presented their evidence, they each sought judgment as a matter of law based on
the so-called vegetation regulation theory of liability. The district court judge
denied Swoope’s motion for judgment as a matter of law and granted CSX’s
motion for judgment as a matter of law, finding that that there was “no evidence
[to] support[] a claim that the vegetation regulation has been violated in this case.”
Thus, Swoope’s negligence per se claim was not submitted to the jury, but his
ordinary negligence claim was allowed to proceed. The jury found in favor of
CSX on this remaining claim.
II.
Swoope appeals, claiming that (1) the district court should have granted his
motion for partial summary judgment; (2) the district court should have granted his
motion for judgment as a matter of law based on the vegetation regulation theory
of liability; and (3) the district court should have denied CSX’s motion for
judgment as a matter of law. Swoope argues that the district court erred in its
interpretation and in its application of the vegetation regulation. He also argues
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that under any interpretation, the district court erred in granting judgment as a
matter of law to CSX when there was evidence that could have supported a jury’s
finding that the vegetation regulation was violated.
As a threshold matter, we do not review the pretrial denial of Swoope’s
motion for partial summary judgment in his favor, because he cannot appeal that
order after there was a full trial on the merits. Pensacola Motor Sales Inc. v. E.
Shore Toyota, LLC, 684 F.3d 1211, 1219–20 (11th Cir. 2012) (citing Ortiz v.
Jordan, 562 U.S. 180, 183–84, 131 S. Ct. 884, 888–89 (2011)).
We review de novo the denial of judgment as a matter of law before
submission to a jury, and “disturb the jury’s verdict only when there is no material
conflict in the evidence, such that no reasonable person could agree to the verdict
reached.” Bhogaita v. Altamonte Heights Condominium Ass’n, 765 F.3d 1277,
1285 (11th Cir. 2014). We also review de novo the grant of judgment as a matter
of law, applying the same standard as that applied by the district court: judgment as
a matter of law “is appropriate when a plaintiff presents no legally sufficient
evidentiary basis for a reasonable jury to find for him on a material element of his
cause of action.” Christopher v. Florida, 449 F.3d 1360, 1364 (11th Cir. 2006).
“But if there is substantial conflict in the evidence, such that reasonable and fair-
minded persons in the exercise of impartial judgment might reach different
conclusions, the motion must be denied.” Id. (quotation omitted).
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A.
Swoope argues that CSX is strictly liable under FELA due to negligence per
se based on a violation of the vegetation regulation, which states in relevant part:
“Vegetation on railroad property which is on or immediately adjacent to roadbed
shall be controlled so that it does not . . . [i]nterfere with railroad employees
performing normal trackside duties.” 49 C.F.R. § 213.37. Swoope says that the
district court improperly read into the regulation a requirement that the
vegetation’s roots be on railroad property. He emphasizes that this limitation was
particularly improper because FELA is a “remedial statute” that courts should
liberally construe in favor of injured workers. Swoope also says that the district
court improperly read a notice requirement into the vegetation regulation.
We need not address all of Swoope’s contentions because we agree with the
district court that the vegetation regulation includes a notice requirement for
liability. See United States v. Chitwood, 676 F.3d 971, 975 (11th Cir. 2012)
(“[W]e may affirm for any reason supported by the record. . . .” (quotation
omitted)). The vegetation regulation was promulgated by the Federal Railroad
Administration (“FRA”). See 49 C.F.R. § 213.37. The FRA, a part of the
Department of Transportation, is statutorily mandated by Congress to prescribe
regulations including track safety standards. 49 U.S.C. § 20142. As a federal
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agency, the FRA is entitled to deference to its decisions within the subject matter
delegated to it by Congress. See Chevron U.S.A. Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 843–44, 104 S. Ct. 2778, 2782 (1984). And rules resulting
from the notice-and-comment rulemaking process are particularly deserving of
Chevron deference. See United States v. Mead Corp., 533 U.S. 218, 229–31, 121
S. Ct. 2164, 2172–73 (2001).
The FRA’s 1998 Final Rule, 63 Fed. Reg. 33,992 (Jun. 22, 1998), sets out a
“knowledge standard” limiting liability for track owners to “non-compliance or
civil penalties for only those defects that they knew about or those that are so
evident the railroad is deemed to have known about them.” Id. at 33,995. The
FRA’s Final Rule says that this exception is unique to track safety standards
because railroads cannot anticipate so as to prevent defects resulting from
unpredictable effects like weather. Id.
Swoope argues that the notice requirement does not apply here because of
Kernan v. Am. Dredging Co., 355 U.S. 426, 78 S. Ct. 394 (1958), where the
Supreme Court described FELA as a remedial statute that courts should liberally
construe to provide recovery for injured workers. See id. at 431–32, 78 S. Ct. at
398. Swoope says that Kernan dictates that only the plain words of the regulation
should be read, and that a federal agency’s goals or statements in the Federal
Register have no effect on the text of the regulation in the FELA context. We
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agree that FELA is a remedial statute, and that “a FELA employer’s violation of a
statutory or regulatory duty gives rise to FELA liability . . ., regardless of whether
the statute or regulation was meant to protect against the particular harm sustained
by the employee.” Schmitz v. Canadian Pac. Ry. Co., 454 F.3d 678, 683 (7th Cir.
2006). But a violation still must occur, and there is no violation here without
notice. The FRA said in its final rule—which is substantively different than the
FRA’s goals or statements in the Federal Register—that the railroad track owner
must have notice for a violation to occur. The final rule is part of the regulatory
scheme, and its requirements limit not only the FRA, but also anyone arguing that
a violation of the regulation has occurred.
FELA liability premised upon negligence per se must be subject to the same
limitations set by the FRA regulations. If it isn’t a violation for the FRA, it can’t
be a violation for FELA. Therefore, we turn to whether CSX had notice, in order
to determine if a violation occurred here.
B.
Swoope argues that even if the vegetation regulation does require notice, the
district court erred in granting partial judgment as a matter of law in favor of CSX
and should have granted judgment as a matter of law in his favor instead. To
overturn the grant of judgment as a matter of law in favor of CSX, Swoope must
show that there was a legally sufficient evidentiary basis for a reasonable jury to
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find for him. Christopher, 449 F.3d at 1364. To earn a grant of judgment as a
matter of law in his favor, Swoope must show that there was no material conflict in
the evidence such that no reasonable person could agree to the verdict reached.
Bhogaita, 765 F.3d at 1285.
There was a material conflict in the evidence about whether CSX had notice
of a violation of the vegetation regulation. The district court recognized in its
summary judgment order that there was a genuine material question of fact
whether CSX should have known that healthy trees could fall on the tracks after
heavy rain, in such a way as to pose a danger to the train crew. At trial, Swoope
presented evidence about the weather on the date of his injury arguing there was
reason for CSX to have known that the tree could fall on the tracks. On the other
hand, CSX presented evidence that there had been no weather alerts for that part of
the track and that another train had passed through the same track just two hours
before. Because there was a material conflict in the evidence, the district court was
correct to deny Swoope’s motion for partial judgment as a matter of law.
For there to be a legally sufficient evidentiary basis for a reasonable jury to
find for him, Swoope needed to show that CSX had notice, or in other words,
actually knew or should have known that there was vegetation obstructing the train
when Swoope was injured. See 63 Fed. Reg. 33,992, 33,995 (Jun. 22, 1998). No
evidence was presented at trial indicating that CSX had actual knowledge of the
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tree on the tracks, so Swoope’s claim rests on showing that CSX should have
known the tree was there. It is true that because a reasonable jury could have
found that CSX should have known that a healthy tree could have fallen on the
tracks, the district court may have erred in granting partial judgment as a matter of
law on Swoope’s negligence per se claim in CSX’s favor. But any possible error
by the district court in deciding partial judgment as a matter of law on negligence
per se grounds was harmless because the jury decided this same issue when
reaching its verdict on Swoope’s ordinary negligence claim, for which he was
required to make at least the same showing in proving whether CSX “should or
could reasonably have [] anticipated” the accident. See Perrine v. Fredericks, 786
F.2d 1068, 1070 (11th Cir. 1986) (holding there is no harm done by granting
judgment as a matter of law where the party still “had the opportunity to fully
advance their contention” to the jury). We affirm the district court.
AFFIRMED.
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