Greg Hanson v. Fort Worth & Western Railroad Company

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00244-CV
___________________________

GREG HANSON, Appellant

V.

FORT WORTH & WESTERN RAILROAD COMPANY, Appellee

On Appeal from the 96th District Court
Tarrant County, Texas
Trial Court No. 096-316600-20

Before Sudderth, C.J.; Bassel and Womack, JJ.
Memorandum Opinion by Justice Bassel
 MEMORANDUM OPINION

I. Introduction

Appellant Greg Hanson raises a single issue challenging a summary judgment

granted to Appellee Fort Worth & Western Railroad Company (the Railroad).

Mr. Hanson frames his issue as follows:

Under the Federal Employers’ Liability Act [(FELA)], a railroad owes a
legal duty to provide a reasonably safe work environment to its
employees. It breaches that duty when it negligently assigns its employee
to perform work beyond his or her physical capacity. Considering all
facts and reasonable inferences in the light most favorable to him,
Mr. Hanson was injured when he fell off his truck because of
exhaustion—a condition the Railroad knew or reasonably should have
known about based on Mr. Hanson’s phone calls. Did the trial court err
[by] granting the Railroad’s hybrid motion for summary judgment?

To establish that the Railroad had notice of his exhaustion and continued to

assign him work that it should have known that he was incapable of performing,

Mr. Hanson relies on statements that he made to his supervisor the day before he was

injured. The statements that Mr. Hanson made to his supervisor do not reasonably

create the inference that he argues should be drawn from them—that the Railroad

should have known that he was being assigned tasks beyond his physical capacity to

perform them. Further, Mr. Hanson seeks to impose a duty on the Railroad to

monitor whether he is sufficiently rested to do his job. To adopt such a duty is

contrary to the principles limiting an employer’s duty to create safety programs for

obvious risks or to warn employees of the risk that because of their experience and

2
the nature of their work they should be aware of. Accordingly, we affirm the trial

court’s summary judgment that Mr. Hanson take nothing.

II. Background

A. Procedural background

The procedural history of this matter is simple. Mr. Hanson sued the Railroad,

alleging that he suffered an injury when “[o]n or about April 3, 2019, while working

within the scope of his duties as a [roadmaster] for [the Railroad], [he] was injured

when he fell from a rail truck and was required to continue working.” His petition

cataloged the following breaches of duty by the Railroad:

a. failing to provide [him] with a safe place to work;

b. failing to reasonably supervise [its] employees;

c. requiring [him] to work past exhaustion and/or past the time for
which it was safe to work;

d. failing to follow safe management practices with the goal of providing
[him] a safe work environment;

e. failing to provide adequate equipment;

f. failing to provide [its] employees[] with proper instructions and
orders;

g. failing to adequately protect him from dangerous conditions;

h. failing to test or properly evaluate the conditions and equipment with
which he was required to work;

i. failing to adopt and enforce proper rules, regulations, and procedures
concerning work practices and work areas; and

3
 j. [o]ther acts so deemed negligent and grossly negligent.

After the parties conducted discovery, the Railroad filed a traditional and no-

evidence motion for summary judgment, noting that Mr. Hanson’s claims had

devolved down to one by which he claimed that he had suffered a fall because of

exhaustion from the number of hours that he had worked before his fall. The

Railroad asserted that a summary judgment that Mr. Hanson should take nothing on

his claim was appropriate for the following reasons:

• Foreseeability is an essential element of a FELA negligence claim.
Even [Mr.] Hanson could not “envision” anyone getting hurt getting
on/off the hi-rail truck if [the Railroad]’s safety rules were followed.
Nor did [Mr.] Hanson’s complaint about working long hours the day
before the incident make his negligence foreseeable the next day. [The
Railroad] had no knowledge that [Mr.] Hanson was fatigued or unable to
safely perform his job when he was injured or that any dangerous
condition existed in its workplace.

• As a matter of law, [the Railroad] had no legal duty to ensure that its
employees did not work long hours.

• Because [Mr.] Hanson has admitted that his own negligence was the
sole cause of his alleged injury, [the Railroad] has no liability.

Mr. Hanson filed a response that summarized his arguments regarding why the

Railroad’s motion should be denied as follows:

• There is a genuine issue of material fact on whether [the Railroad]
failed to provide a reasonably safe place to work under [FELA] due to
[the Railroad’s] forcing Mr. Hanson to work excessive hours.[1]

1
As we read Mr. Hanson’s briefing, it appears that he is no longer arguing that
being assigned long work hours constitutes an act of negligence. His reply brief
states,

4
 • [The Railroad] was negligent when its employee – Mr. Terrance
Daniels, who was Mr. Hanson’s supervisor at [the Railroad], forced
Mr. Hanson to continue to work beyond exhaustion, even after
Mr. Hanson informed Mr. Daniels that he [had] worked 16–17 hours
that day already.[2]

The trial court granted the Railroad’s motion for summary judgment and

ordered that Mr. Hanson take nothing on his claims. Mr. Hanson then filed a notice

of appeal.3

Mr. Hanson has never argued that a railroad need not have notice of an
employee’s fatigue. To the contrary, citing the same portion of the
Second Circuit case that the Railroad also relies on, Mr. Hanson agreed
that a railroad must have actual or constructive knowledge to trigger the
duty of care: “[A]n employer is not liable if it has no reasonable way of
knowing that a potential hazard exists[.]”
2
The record contains no objections to any of the summary-judgment evidence
relied on by the parties in the motion or the response.
3
The Railroad moved to dismiss this appeal because Mr. Hanson voluntarily
paid the court costs assessed against him in the trial court’s summary-judgment order
without expressing an intent to continue his appeal and, thus, the appeal is moot. Mr.
Hanson responded with various arguments regarding why he was required to pay the
costs and also pointed out that the day his counsel began communicating about
paying the costs, he filed his notice of appeal. The voluntary satisfaction of a
judgment does not moot an appeal when the party who submits the payment makes
clear an intent to continue the appeal. For example, as the First Court of Appeals
noted,

[Appellant] relies upon Highland Church of Christ v. Powell, 640 S.W.2d
235[, 236] (Tex. 1982), for the proposition that a judgment debtor who
voluntarily satisfies a judgment thereby waives the right to appeal. . . . .
However, both Highland Church and subsequent decisions of the
Supreme Court of Texas provide that a judgment debtor may pay a
judgment and still appeal, so long as the judgment debtor makes clear its
intent to pursue its appellate rights. Id. at 236–37; [see also] Marshall v.
Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006); BMG

5
 B. Factual Background

At the time that Mr. Hanson was injured, he had been employed in the railroad

industry for almost twenty-six years. His job title with the Railroad was roadmaster.

His job duties as roadmaster were to inspect the Railroad’s tracks. Mr. Hanson

performed these duties by driving a hi-rail truck over the tracks, in Mr. Hanson’s case,

a Ford F-250. The event that was the basis for Mr. Hanson’s claim occurred when he

slipped off the edge of the hi-rail truck’s running board and caught his fall with his

right arm.

The deposition testimony indicated that Mr. Hanson did not have a complaint

about the equipment that he was using when he was injured or the Railroad’s training

and safety policies for using the equipment. Mr. Hanson acknowledged that

dismounting from the truck was a regular part of his job responsibilities, that he had

climbed on and off the vehicle “a lot,” and that he had never had a problem before he

was injured on the occasion at issue. The Railroad had specific safety policies in place

that covered Mr. Hanson’s job duties; one of the policies was to maintain three points

Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 770–71 (Tex. 2005); Miga v.
Jensen, 96 S.W.3d 207, 211–12 (Tex. 2002). “The Texas rule is not, and
never has been, simply that any payment toward satisfying a judgment,
including a voluntary one, moots the controversy and waives the right to
appeal that judgment.” Miga, 96 S.W.3d at 211.

McLaurin v. McLaurin, No. 01-14-00710-CV, 2016 WL 3023020, at *17 (Tex. App.—
Houston [1st Dist.] May 26, 2016, pet. denied) (mem. op.). We do not reach the
question of whether the payment of costs constitutes a voluntary payment but deny
the motion to dismiss because of the clear intent expressed by Mr. Hanson to
continue his appeal, as evidenced by his filing of a notice of appeal.

6
of contact when dismounting his truck, i.e., “[i]f both of [his] hands [were] holding on

to something, . . . one of [his] feet [could move] from one position to the other” or “if

both of [his] feet [were] planted, . . . one of [his] hands [could move] from one

position to another.” The three-points-of-contact rule was one that Mr. Hanson had

followed throughout his railroad career. Mr. Hanson agreed that it was usually pretty

safe to dismount the truck using the three-point method and that he could not

envision slipping when using three points of contact in a normal situation.

The hi-rail truck assigned to Mr. Hanson had “grab handles for getting off, so

[that he could] get the three-point contact.” The truck was also equipped with a

corrugated running board that provided a nonslip surface for placing one foot when

dismounting the vehicle. Mr. Hanson was also provided with footwear that enabled

him to maintain proper footing as he entered and exited the vehicle. Mr. Hanson

testified that he did not think that there was anything unsafe about the truck that he

had driven on the day of his injury, that he had “no complaints [about] the

equipment[,]” and that he saw no hazardous conditions on it.

At the time of the fall, the vehicle was stopped on the tracks. Mr. Hanson

described the height from which he had to step down at the time of his injury as being

a “little long” but also that it was the type of step that he made every day.

Mr. Hanson described what occurred as follows: “I stopped the truck and I was

going to get out, and I slipped on the running board and fell to the ground. It just

7
happened that quick.” Mr. Hanson attributed his misstep to being “stressed and

tired.”

Mr. Hanson began the workweek during which he was injured after having

worked one day of the prior week. Mr. Hanson worked on the Monday of the

workweek at issue but described that day as normal.

Mr. Hanson attributed his tiredness to long hours that he had been required to

work during a two-day period occurring on the Tuesday and Wednesday of his

workweek. Mr. Hanson was injured at approximately 7:00 p.m. on Wednesday.

On Tuesday, a federal inspection of the Railroad’s tracks began. Workdays

during a federal inspection typically required longer work hours, and Mr. Hanson

testified that he had had to put in “worse” days during his railroad career than the

ones he put in during the day prior to and the day that his injury occurred.

Mr. Hanson’s job duty during the inspection was to transport the inspector in

his hi-rail vehicle. The inspection process involved “mainly being in [the vehicle] with

the [federal] inspector and looking at the track . . . [f]or a lot of hours.” Mr. Hanson

stated that he was “doing a little bit of work” during the inspection by replacing

missing bolts from time to time. Mr. Hanson also had work responsibilities to inspect

the work of a “tie gang” that was doing work on the tracks. The inspection process

required Mr. Hanson to work 16.5 hours on the Tuesday that the inspection began,

with his workday starting at 6:00 a.m. and ending at 10:30 p.m.

8
 If the federal inspector found defects in the track, Mr. Hanson was required to

put warning flags out so that a train did not travel over the defective tracks.

Apparently, an issue arose late on Tuesday about whether Mr. Hanson had set out the

required warning flags. The issue about the flags triggered a disagreement between

Mr. Hanson and his supervisor when the supervisor instructed Mr. Hanson to be the

one to install the flag.

It was during the Tuesday conversations between Mr. Hanson and his

supervisor about the flag that Mr. Hanson claims that he put the Railroad on notice

that he was being worked to the point of dangerous exhaustion. What these

conversations entailed was documented in a hearing transcript that was apparently

prepared as part of Mr. Hanson’s claim that he was injured, with the hearing transcript

containing Mr. Hanson’s supervisor’s description of the conversations at issue.

Mr. Hanson included the transcript in his summary-judgment response, and we quote

the material part of the document describing the flag incident and the

communications between Mr. Hanson and his supervisor, using italics to reflect the

portions that Mr. Hanson highlighted in his summary-judgment response:

[The Railroad responded as follows:]

April 2 - they started on that day. Clay[4] got two on the first day
for concentrated loads. [Mr. Hanson] got one the first day too. The
evening of April 2nd, and the end of the first day of inspection,
[Mr. Hanson] told me he was going to have to put out a speed restriction

The record does not identify Clay, nor does it identify Jared and Gene who are
4

mentioned below.

9
 on his territory up to MP 55. And we talked about that speed restriction
being a total of 25 miles long. T [sic] “[Y]ou have to do what you have
to do[.”] Shortly after that, an hour to an hour and a half, he
([Mr. Hanson]) called me back. [Mr. Hanson] said the [Federal Railroad
Administration (FRA)] guy told him[,] “I know you have other violations
out there, but you really only need cover from MP 36 to MP 40.[”] The
other part of the speed restriction was already out for the tie project. We
can get the bulletins. With the [b]ulletins out, and the slow order
required by the FRA, it would [have] totaled 25 miles. I told him,
[Mr. Hanson], I need to go pull that flag back. He started complaining[,]
[“]I’m by Cresson, I’m all most home. I’m going to call the dispatcher
and see what trains that’s going to affect overnight.[”] I told him to call
me back and let me know. He called me, maybe 20 minutes later[] and
said it’s only going to affect one train “well [Mr. Hanson], I don’t want
to hear Jared and Gene’s s[--]t, if we don’t need to have a 25 mile speed
restriction, I don’t want it[.”] He really started complaining then. He
([Mr. Hanson]) didn’t know where his last defect was – I don’t know
why the FRA guy even called him. The FRA guy is not the governing
factor of our railroad – [Mr. Hanson] is the roadmaster of that territory –
he needs to know where that last defect was[] and where to put out that
speed restriction. If it’s a class specific defect, you have to put the slow
order out then, slow the trains down. That[’s] what the FRA knows.
I’m not there, I’m going on what he tells me, and I tell him he has to go
get that flag. [Mr. Hanson] said[,] [“]If I go out there, I have to put in 16/17
hours. I’m already over my hours[”] – I told him you didn’t work but 1-day last
week, he ([Mr. Hanson]) said something else, and I told him I don’t want to hear
it[;] go move the flag back.

About 15-20 minutes I called him back – I told him hey, where’s
the gang at – have them go out and move the flag back. [Mr. Hanson] –
said that’s a good idea, I’ll do that. He ([Mr. Hanson]) called back
shortly after – and said they (the gang) is almost out of hours and they
can’t go get the flag – DOT Driver. I told him he had to go get it. He
([Mr. Hanson]) said something like I might not be at work tomorrow, working to[o]
many hours. I ended the call.

Mr. Hanson returned to work on Wednesday (the day after the documented

conversations with the supervisor), which was the day that he suffered the fall from

his vehicle. On Wednesday, Mr. Hanson continued to accompany the federal

10
inspector and to inspect the track behind the work of the tie gang. Mr. Hanson began

work at 6:00 a.m. and worked for thirteen hours before the fall, which he reported at

7:30 p.m.

When the incident occurred, Mr. Hanson had worked forty hours during the

three-day period in question. Mr. Hanson also testified that during that time, he had

“been going home and getting good rest at night.”

The record does not inventory all the communications between Mr. Hanson

and his supervisor on Wednesday, but Mr. Hanson testified as follows about whether

he had communicated a concern to his supervisor that he was not a safe employee:

[Railroad’s attorney:] My question is, on the day of this incident, did you
tell [the supervisor], [“]I’m too stressed, I’ve been working too hard and,
therefore, I’m not a safe employee[”]?

[Mr. Hanson’s attorney]: Objection, form.

A. No, I didn’t say that.

Though Mr. Hanson testified that he had complained about working long hours to his

supervisor, as we read the record, he is referring to the statements that he made to his

supervisor on Tuesday.

The supervisor described his communications with Mr. Hanson on the

Tuesday and Wednesday in question as follows:

Q. (BY [Railroad’s attorney]) I’ve got just a couple questions for you,
sir. Did [Mr. Hanson] ever say he was too tired to work safely at any
time you talked to him during this week when the incident happened?

A. He did not.

11
 Q. Did -- the day that [Mr. Hanson] said that he [had] worked a
total of 16 to 17 hours, was that the day before this incident?

A. Repeat that.

Q. Sure. Which day was it during that week that [Mr. Hanson]
would have allegedly worked 16 to 17 hours?

A. It would have been the day prior to. I believe it would have
been the day prior to.

Q. All right. In other words, [Mr. Hanson] didn’t injure himself
when you told him [that] he needed to go put this flag out that evening?

A. That’s correct.

....

Q. Did [Mr. Hanson] ever tell you on the day that his incident
happened that he was too tired or fatigued to safely do his work?

A. He did not.

Later, the supervisor reiterated,

Q. Did he ever tell you at any time on Tuesday or when he had to go
back out there, or on Wednesday, at the end of the day when he
reported to you that he had injured himself, that he was fatigued or
incapacitated or in any way couldn’t work safely?

A. No.

Q. If he had done so --

[Mr. Hanson’s attorney]: Objection, form.

Q. --what would you have done?

[Mr. Hanson’s attorney]: Objection, form.

A. I would have not asked him to go back.

12
 Q. Okay. Was there ever any indication by Mr. Hanson of any
fatigue or incapacity or anything that would prevent him from safely
doing his job?

[Mr. Hanson’s attorney]: Objection, form.

A. Repeat that.

Q. Is there -- was there ever anything reported to you by
[Mr.] Hanson as to any incapacity or fatigue or anything like that to
where he couldn’t safely do his job?

[Mr. Hanson’s attorney]: Objection, form.

A. No.

The parties had clashing narratives on whether it was the employee’s burden to

make the Railroad aware of exhaustion and whether it was the Railroad’s duty to

monitor whether an employee could continue to work safely. The Railroad’s theme

was that Mr. Hanson complained only on Tuesday about the number of hours that he

had worked and that without a complaint that Mr. Hanson was tired or fatigued, the

supervisor acted appropriately in telling Mr. Hanson to keep working. Other

managerial personnel who were responsible for the Railroad’s safety stated that it was

Mr. Hanson’s obligation to report when he was experiencing fatigue, that he was

empowered to indicate that he was tired or fatigued, and that the Railroad would

respond appropriately to a complaint presented in those terms.

Mr. Hanson’s narrative highlighted two themes: (1) a challenge to what he

characterized as the Railroad’s theory that his “being fatigued from working long

hours for [the Railroad] the day before the incident [did] not [make it] foreseeable that

13
he might be still fatigued the next day”; and (2) a contention that “[the Railroad] also

appears to be arguing that its employees must utter the exact words ‘fatigued’ and ‘not

safe to work’ in order to establish foreseeability and [the Railroad]’s duty of care.”

In presenting these themes, Mr. Hanson emphasized various aspects of the

deposition testimony elicited from the Railroad’s managerial personnel. That

testimony included the following:

• A statement by the general director of operating practices that he did not

think that the Railroad should do anything to ensure that employees are not

working past the point of exhaustion other than telling employees to report

if they are fatigued.

• Statements by the director of the Railroad’s safety department that

suggested (1) that he did not consider an employee was unsafe to work

unless he was fatigued to the point that he could not get out of bed or hold

his eyes open and (2) that he was unconcerned if an employee claimed that

he was tired but was told to get the job done. He refused to characterize

Mr. Hanson’s complaint—that he had worked too many hours on the

Tuesday before his injury—as a complaint that should have prompted

action.

• Statements by a safety employee regarding the absence of (1) training by the

Railroad to assist employees in identifying signs of fatigue in other

14
 employees and (2) policies setting the maximum number of hours an

employee working in the track group should work during the week.

• Mr. Hanson’s supervisor’s statement about the Tuesday conversation

between him and Mr. Hanson. Mr. Hanson argued that the supervisor’s

“attitude is very clear: get it done, no matter what. A jury might find that

the Railroad—through Mr. Daniels—was negligent in creating an unsafe

work environment for its employees by forcing the employees to work

beyond exhaustion.”

• Testimony suggesting that the Railroad’s response to Mr. Hanson during

the Tuesday conversation violated the Railroad’s policy:

Q. And would you agree that managers, like Mr. Daniels, should
encourage their workers to report fatigue?

A. Yes. The worker needs to report that if he’s fatigued or
if he’s unsafe to do his job, he needs to report that.

Q. And when a manager like Mr. Daniels receives a report
tha[t] someone is tired, what should he do?

[The Railroad’s attorney]: Objection, form.

A. He should let that -- or not let that person, but inform
that person to get rest and see if he can do his -- perform his job
safely. And if he can’t, then we’ll find something else or he won’t
work that day, if he’s going to be unsafe or if he’s fatigued where
he can’t work safe.

• Testimony that the policy of the Railroad was to “write up” employees for

not working eight hours in a day—no matter how many hours that they had

15
 worked the prior day—and that Mr. Hanson’s supervisor had the same

number of employees available to him “regardless [of] whether it’s busy or

not.”

III. Standard of Review

In a summary-judgment case, the issue on appeal is whether the movant met

the summary-judgment burden by establishing that no genuine issue of material fact

exists, and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P.

166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.

2009). We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d

860, 862 (Tex. 2010).

We take as true all evidence favorable to the nonmovant, and we indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v.

Parker, 249 S.W.3d 392, 399 (Tex. 2008); Provident Life & Accident Ins. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003). We also consider the evidence presented in the light

most favorable to the nonmovant, crediting evidence favorable to the nonmovant if

reasonable jurors could and disregarding evidence contrary to the nonmovant unless

reasonable jurors could not. Mann Frankfort, 289 S.W.3d at 848. We must consider

whether reasonable and fair-minded jurors could differ in their conclusions in light of

all the evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.

2006); City of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005). For example, in the

16
context of circumstantial evidence, we must test the evidence to ensure the inferences

drawn from it are reasonable and do so by applying the following analytical template:

“An inference is not reasonable if it is susceptible to multiple, equally
probable inferences, requiring the factfinder to guess in order to reach a
conclusion.” Suarez v. City of Tex. City, 465 S.W.3d 623, 634 (Tex. 2015).
A jury “may not reasonably infer an ultimate fact from meager
circumstantial evidence which could give rise to any number of
inferences, none more probable than another.” Kingsaire, Inc. v. Melendez,
477 S.W.3d 309, 313 (Tex. 2015) (quoting Hancock v. Variyam, 400
S.W.3d 59, 70–71 (Tex. 2013)). If a claim is “supported only by meager
circumstantial evidence, the evidence does not rise above a scintilla (and
thus is legally insufficient) if jurors would have to guess whether a vital
fact exists.” Wilson, 168 S.W.3d at 813. “Thus, when the circumstantial
evidence of a vital fact is meager, a reviewing court must consider not
just favorable but all the circumstantial evidence, and competing
inferences as well.” Id. at 814. In such a case, the record must contain
“something else” that corroborates the probability of the inferred fact’s
existence or non-existence. Marathon Corp. v. Pitzner, 106 S.W.3d 724,
729 (Tex. 2003).

Multiple inferences may be drawn from a single fact situation, and
circumstantial evidence can thus give rise to separate inferences, each of
which supports a different element of a claim. See McClure v. Allied Stores
of Tex., Inc., 608 S.W.2d 901, 904 (Tex. 1980); Farley v. MM Cattle Co., 529
S.W.2d 751, 756 (Tex. 1975). However, an inference stacked only upon
other inferences, rather than supported by direct evidence, is not legally
sufficient evidence. See Pitzner, 106 S.W.3d at 728. An inference is not
reasonable “if it is premised on mere suspicion—some suspicion linked
to other suspicion produces only more suspicion, which is not the same
as some evidence.” Suarez, 465 S.W.3d at 634 (cleaned up). And, if the
evidence allows for “only one inference, neither jurors nor the reviewing
court may disregard it.” Wilson, 168 S.W.3d at 822.

17
Miller v. Superior Forestry Serv., Inc., No. 03-17-00043-CV, 2018 WL 4039562, at *2 (Tex.

App.—Austin Aug. 24, 2018, pet. denied) (mem. op.). 5

For a traditional summary judgment, a defendant that conclusively negates at

least one essential element of a plaintiff’s cause of action is entitled to summary

judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.

2010). Once the defendant produces sufficient evidence to establish the right to

summary judgment, the burden shifts to the plaintiff to come forward with competent

controverting evidence that raises a fact issue. Phan Son Van v. Peña, 990 S.W.2d 751,

753 (Tex. 1999).

With regard to no-evidence motions for summary judgment, after an adequate

time for discovery, the party without the burden of proof may, without presenting

evidence, move for summary judgment on the ground that no evidence supports an

essential element of the nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The

motion must specifically state the elements for which no evidence exists. Id.; Timpte

Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the

motion unless the nonmovant produces summary-judgment evidence that raises a

genuine, material fact issue. See Tex. R. Civ. P. 166a(i) & 1997 cmt.; Hamilton v. Wilson,

249 S.W.3d 425, 426 (Tex. 2008).

5
The term “inference stacking” has come under criticism. See Chad Baruch,
David J. Fisher & Jefferson Fisher, Knives Out: A Call For The Supreme Court Of Texas
To Abolish The So-Called “Rule” Against Inference Stacking, 52 Tex. Tech. L. Rev. 705,
705–23 (Summer 2020). No matter Miller’s use of the term, it concisely set out the
standard that we should apply in deciding whether inferences may be properly drawn.

18
 When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, again indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d

291, 292 (Tex. 2006). We review a no-evidence summary judgment for evidence that

would enable reasonable and fair-minded jurors to differ in their conclusions.

Hamilton, 249 S.W.3d at 426 (citing Wilson, 168 S.W.3d at 822). We credit evidence

favorable to the nonmovant if reasonable jurors could, and we disregard evidence

contrary to the nonmovant unless reasonable jurors could not. Timpte Indus., 286

S.W.3d at 310 (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If

the nonmovant brings forward more than a scintilla of probative evidence that raises a

genuine issue of material fact, then a no-evidence summary judgment is not proper.

Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118

S.W.3d 742, 751 (Tex. 2003). 6

IV. Analysis

As we noted in this opinion’s introduction, Mr. Hanson argues in his sole issue

that the trial court erred by granting the Railroad’s hybrid motion for summary

6
We should generally review the ruling on a no-evidence motion for summary
judgment first, and “if no claims survive a no-evidence review, a review of the
traditional motion becomes moot.” Littleton v. Nationstar Mortg. L.L.C., No. 02-19-
00238-CV, 2020 WL 1949623, at *4 (Tex. App.—Fort Worth Apr. 23, 2020, pet.
denied) (mem. op.). But we may combine our review if it will make our review of the
similar grounds raised in the no-evidence and traditional motions for summary
judgment more concise. See id.; see also Bradford v. Tex. Health Harris Methodist Hosp.,
No. 02-20-00357-CV, 2021 WL 1800181, at *3 (Tex. App.—Fort Worth May 6, 2021,
pet. denied) (mem. op.) (same). We will combine our review in this case.

19
judgment. Specifically, Mr. Hanson argues that considering all the facts and

reasonable inferences in the light most favorable to him, he was injured when he fell

off his truck because of exhaustion—a condition that he claims the Railroad knew or

reasonably should have known about based on his phone calls. Because the facts do

not reasonably create the inferences that Mr. Hanson claims and because he seeks to

impose a duty on the Railroad that is contrary to the principles that limit an

employer’s duty to create safety programs for obvious risks and experienced

employees, we uphold the trial court’s summary judgment.

A. We set forth the elements of a FELA cause of action.

As noted, Mr. Hanson’s claim is not a common-law negligence claim brought

under Texas law but one under FELA. See 45 U.S.C.A. § 51. Stripped of verbiage

that does not apply to Mr. Hanson’s claim, the material provisions of the FELA

provide that “[e]very common carrier by railroad . . . shall be liable in damages to any

person suffering injury while he is employed by such carrier . . . for such injury . . .

resulting in whole or in part from the negligence of any of the officers, agents, or

employees of such carrier.” Id.

Citing the United States Supreme Court, the Texas Supreme Court has outlined

the similarities and differences between a claim under FELA and general common-law

principles of negligence. Union Pac. R.R. Co. v. Nami, 498 S.W.3d 890, 894–96 (Tex.

2016). The similarities lie in the liability element, as Nami explained,

20
 But with respect to FELA’s liability element, the Supreme Court
explained in Consolidated Rail Corp. v. Gottshall[, 512 U.S. 532, 556, 114 S.
Ct. 2396, 2411 (1994),] that while “Congress’[s] goal in enacting [FELA
was] alleviating the physical dangers of railroading[,”]

FELA is . . . not . . . a workers’ compensation statute. . . .
FELA does not make the employer the insurer of the safety
of his employees while they are on duty. The basis of his
liability is his negligence, not the fact that injuries occur.
And while what constitutes negligence for the statute’s
purposes is a federal question, we have made clear that this
federal question generally turns on principles of common
law: [FELA] is founded on common-law concepts of
negligence and injury, subject to such qualifications as
Congress has imported into those terms. Those
qualifications . . . are the modification or abrogation of
several common-law defenses to liability, including
contributory negligence and assumption of risk. Only to
the extent of these explicit statutory alterations is FELA an
avowed departure from the rules of the common law.
Thus, although common-law principles are not necessarily
dispositive of questions arising under FELA, unless they
are expressly rejected in the text of the statute, they are
entitled to great weight in our analysis.

Id. at 894 (footnotes omitted).

Looking to the principles outlined in Gottshall, Nami set out its overview of how

to decide whether a railroad breached a duty and committed negligence as follows:

We track Gottshall’s analysis in this case. In applying FELA, we look to
the common law, not of Texas or any particular jurisdiction, but in
general. The Supreme Court has stated that “[a] railroad has a duty to
use reasonable care in furnishing its employees with a safe place to work
[that] was recognized at common law[] [and] is given force through
[FELA].” These fundamental common-law principles apply. First,
negligence means the failure to use ordinary care—failing to do what a
reasonable person like the defendant would have done under the same
or similar circumstances—to protect against unreasonable risk of harm.

21
 Second, “an employer’s duty to provide a safe workplace . . . always
exists[.]”

Id. at 895–96 (footnote omitted).

An integral part of the question of duty under the FELA is foreseeability. As

the United States Supreme Court has noted,

“[R]easonable foreseeability of harm,” . . . is indeed “an essential
ingredient of [FELA] negligence.” The jury, therefore, must be asked,
initially: Did the carrier “fai[l] to observe that degree of care which
people of ordinary prudence and sagacity would use under the same or
similar circumstances[?]” In that regard, the jury may be told that “[the
railroad’s] duties are measured by what is reasonably foreseeable under
like circumstances.” Thus, “[i]f a person has no reasonable ground to
anticipate that a particular condition . . . would or might result in a
mishap and injury, then the party is not required to do anything to
correct [the] condition.” If negligence is proved, however, and is shown
to have “played any part, even the slightest, in producing the injury,” then the
carrier is answerable in damages even if “the extent of the [injury] or the
manner in which it occurred” was not “probable” or “foreseeable.”

CSX Transp., Inc. v. McBride, 564 U.S. 685, 703–04, 131 S. Ct. 2630, 2643 (2011)

(citations and footnotes omitted).

The Texas Supreme Court formulated the impact of foreseeability on the

question of duty as follows:

The standard of care that a railroad must meet “must be commensurate
to the dangers of the business.” Thus, an “essential ingredient” of the
defendant’s duty to use reasonable care is whether the railroad could
have reasonably foreseen a harm. The defendant’s duty is “measured by
what a reasonably prudent person would anticipate as resulting from a
particular condition.”

Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002) (citations omitted).

22
 The main difference between a common-law negligence claim and a FELA

claim is the element of causation:

The causation element of a FELA action is a sharp departure from the
common-law requirement of proximate cause. The United States
Supreme Court in CSX Transportation, Inc. v. McBride recently explained[,]

FELA’s language on causation . . . is as broad as could be
framed. Given the breadth of the phrase “resulting in
whole or in part from the [railroad’s] negligence,” and
Congress’[s] humanitarian and remedial goals, . . . in
comparison to tort litigation at common law, a relaxed
standard of causation applies under FELA. . . . Under
FELA[,] the test of a jury case is simply whether the proofs
justify with reason the conclusion that employer negligence
played any part, even the slightest, in producing the injury
or death for which damages are sought.

Nami, 498 S.W.3d at 894 (footnote omitted).

B. We set forth the principle that a railroad should not assign an
employee work duties that the Railroad knows or should have
known are beyond the employee’s physical capabilities.

In analyzing a railroad’s duty to create a safe working environment, the El Paso

Court of Appeals has explained what triggers a duty to address a worker’s ability to

perform job duties:

The ultimate question is whether the railroad exercised reasonable care
in creating a reasonably safe working environment. [Rivera v. Union Pac.
R.R. Co., 378 F.3d 502, 507 (5th Cir. 2004)] (citing Urie [v. Thompson], 337
U.S. [163,] 17[8] n.16, 69 S. Ct. 1018[, 1028 (1949)]). The railroad’s duty
to create a reasonably safe work environment encompasses a duty to
assign an employee to work for which he or she is reasonably suited. Id.
(citing Emmons [v. S. Pac. Transp. Co.], 701 F.2d [1112,] 1120 [(5th Cir.
1983)]). The railroad breaches that duty if it negligently assigns an
employee to perform work beyond his physical capacity, or, in other
words, if the railroad knew or should have known of the employee’s

23
 diminished work capacity and, despite that knowledge, continued to
assign the employee to tasks that it knew or should have known would
aggravate his physical condition. Id. However, the railroad is not an
insurer of its employees’ safety. . . . Gottshall, 512 U.S. [at] 543, 114 S. Ct.
[at] 2396, 2404 . . . . Therefore, the railroad generally has no duty to
ascertain whether an employee is fit for a particular job, absent notice to
the contrary. See, e.g., Fletcher [v. Union Pac. R.R. Co.], 621 F.2d [902,] 909
[(8th Cir. 1980)].

Ragland v. BNSF Ry. Co., 501 S.W.3d 761, 780 (Tex. App.—El Paso 2016, no pet.).

A court outside of Texas echoed that a railroad should not assign work duties

that it knows or should have known are beyond the physical capabilities of the

employee:

Among other things, Amtrak “has a duty to assign employees to work
for which they are reasonably suited[, . . . and it] breaches that duty if it
negligently assigns an employee to perform work beyond his capacity.”
Fogg v. Nat’l [R.R.] Passenger Corp, 585 A.2d 786, 789 (D.C. 1991)
(citations and quotation marks omitted). “The railroad is negligent if it
knew or should have known that its assignment exposed the employee
to an unreasonable risk of harm.” Id. In other words, the jury must
focus on whether “the [railroad] knew or should have known of the
[employee’s] diminished work capacity and in spite of that knowledge . . .
unreasonably continued to assign [the employee] to tasks that [the
railroad] knew or should reasonably have known would aggravate her
physical condition.” Id. (approving jury instructions)[; see] Nat’l [R.R.]
Passenger Corp. v. Krouse, 627 A.2d 489, 495 n.10 (D.C. 1993) (construing
Fogg).

Jones v. Nat’l R.R. Passenger Corp., 942 A.2d 1103, 1106–07 (D.C. 2008). We apply the

standards of Raglan and Jones because Mr. Hanson’s argument is that he had a

diminished physical capacity to work due to exhaustion and yet the Railroad assigned

him tasks that it should have known that he was not capable of performing safely.

24
 C. We set forth the principles that apply to limit the duties of an
employer to establish safety standards for obvious hazards and to
train an employee about obvious hazards, such as those of fatigue.

An employer also has a duty to adopt adequate rules to warn workers of the

hazards of their employment and to supervise their activities, but the extent of that

duty corresponds to the nature of the dangers associated with the work, how obvious

the dangers are, and the experience of the employee. Specifically,

[a]lthough an employer is not an insurer of its employee’s work safety, it
has a duty to use ordinary care in providing a safe place to work. Leitch
v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996). This duty includes
providing rules and regulations for the safety of employees, warning
employees of the hazards of their employment, and supervising
employees’ activities. Farley . . . , 529 S.W.2d [at] 754 . . .; Nat’l
Convenience Stores, Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.—
Houston [14th Dist.] 1999, no pet.). An employer has no duty, however,
to adopt safety rules when its business is neither complex nor hazardous
or when the dangers incident to the work are obvious or are of common
knowledge and are fully understood by the employee. Matherne, 987
S.W.2d at 149. Similarly, the duty to warn or to caution an employee of
a danger arises when (1) the employment is of a dangerous character
requiring skill and caution for its safe and proper discharge and (2) the
employer is aware of the danger and has reason to know that the
employee is unaware of the danger. Id. An employer’s duty to instruct
applies to an inexperienced employee[] but not to one who is
experienced in the work that he is assigned. Farley, 529 S.W.2d at 754;
Matherne, 987 S.W.2d at 149. Thus, the age and experience of the
employee should be considered in measuring the employer’s duty.
Farley, 529 S.W.2d at 754; see also Humble Sand & Gravel, Inc. v. Gomez, 146
S.W.3d 170, 186 (Tex. 2004).

Wald-Tinkle Packaging & Distrib., Inc. v. Pinok, No. 01-02-01100-CV, 2004 WL

2966293, at *4 (Tex. App.—Houston [1st Dist.] Dec. 23, 2004, no pet.) (mem. op.); see

also Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (stating that employer “owes

25
no duty to warn of hazards that are commonly known or already appreciated by the

employee”).

The Texas Supreme Court has applied the principles outlined above when

addressing the obligation to create safety rules regarding worker fatigue as follows:

Having held that there is no employer duty with respect to off-duty
accidents involving fatigue, we also decline to create a new duty
requiring employers to train employees about fatigue.

In the employment context, an employer has a duty to “warn an
employee of the hazards of employment and [to] provide needed safety
equipment or assistance.” Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566,
568 (Tex. 2007) . . . (quoting Kroger Co. . . . , 197 S.W.3d [at] 794 . . . ).
The employee’s age and experience in the work he is assigned should
also be considered. See Allen v. A & T Transp. Co. . . . , 79 S.W.3d 65, 70
(Tex. App.—Texarkana 2002, pet. denied) (citing Farley . . . , 529 S.W.2d
[at] 754 . . . ). However, the employer “owes no duty to warn of hazards
that are commonly known or already appreciated by the employee.”
Skiles, 221 S.W.3d at 568–69 (quoting Kroger Co., 197 S.W.3d at 794, and
holding that an employer had no duty to warn an employee about the
dangers associated with using a ladder to jump over a lift gate, which was
“common and obvious to everyone”); see also Praesel [v. Johnson], 967
S.W.2d [391,] 398 [(Tex. 1998)] (declining to impose a duty on doctors
to warn epileptic patients not to drive because “the risk that a seizure
may occur while driving and the potential consequences should be
obvious to those who suffer from epilepsy”); Wilhelm v. Flores, 195
S.W.3d 96, 98 (Tex. 2006) . . . (holding that there is no duty to warn
about dangers of bee stings); Kroger Co., 197 S.W.3d at 795 (holding that
there is no duty to warn about dangers of using a vehicle doorjamb for
leverage); Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex. 1995)
(holding that there is no duty to warn of “obvious risks” that are
common knowledge). Likewise, we do not impose a duty to train
employees regarding the commonly-known dangers of driving while
fatigued. See J & C Drilling Co. [v. Salaiz], 866 S.W.2d [632,] 638 [(Tex.
App.—San Antonio 1993, no writ)] (rejecting argument that employer
had a duty to instruct worker “on when to call for relief or how long to
rest before driving the company car”); Matherne, 987 S.W.2d at 150–52
(rejecting duty to train employee regarding fatigued driving on the job,

26
 and holding that employer has no duty to warn or instruct an employee
“with regard to dangers that are ordinarily incident to driving a vehicle
and require no special skills or knowledge other than that expected of all
licensed drivers”).

Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 412–13 (Tex. 2009). Thus, in

assessing the nature of the duty owed by the Railroad to Mr. Hanson, we apply (1) the

template of Pinok and Nabors that calibrates the duty owed to the nature of the

dangers and the experience of the employee and (2) Nabors’s limitations on the duties

regarding worker fatigue.

D. The trial court properly granted summary judgment that
Mr. Hanson take nothing on his claims against the Railroad.

This case boils down to the effect of two statements made by Mr. Hanson to

his supervisor on the day before he was injured when he was instructed on Tuesday to

place the warning flag that he had failed to place earlier: (1) “If I go out there, I have

to put in 16/17 hours. I’m already over my hours,” and (2) “I might not be at work

tomorrow, working to[o] many hours.”

The essence of Mr. Hanson’s argument regarding why the trial court erred by

granting summary judgment is that the statements that he made to his supervisor

triggered the following inference of knowledge on the part of the Railroad:

As a matter of logic and experience, if an employer knows that its
employee has worked the equivalent of two full workdays in one day and
[if] the employee has told his boss that he might not be coming into
work the next day, [then] one may reasonably infer that the reason is that he will
be too exhausted to work. [Emphasis added.]

Mr. Hanson sees this inference as reasonable in the face of the following:

27
 • The quoted statements do not state that Mr. Hanson has reached a point of
exhaustion that made it unsafe for him to perform his job duties.

• The action that he suggested that he might take in response to the amount
of work he performed on Tuesday when he had allegedly “work[ed] to[o]
many hours” did not occur; he came to work the next day.

• Over the course of the next day after he made the quoted statements, he
made no complaint that he was so exhausted that he could not safely work;
that he could not perform the task of transporting the inspector in his truck;
or that he might injure himself by having his foot slip while performing the
routine task of dismounting from his truck (which had adequate safety
features), despite being adequately trained to safely perform the task of
dismounting the vehicle.

• Mr. Hanson had decades of experience working for railroads, and that
experience included long days while a federal inspection was occurring.

• The Railroad had a safety policy in place to relieve employees who had
reported that they were too fatigued to work safely.

• Though Mr. Hanson criticized certain aspects of the Railroad’s safety policy
dealing with complaints of exhaustion, he raises no issue that some aspect
of the policy prevented him from making a complaint about exhaustion.

We agree with Mr. Hanson that the summary-judgment standard of review

requires that we draw all reasonable inferences from the evidence, but we disagree

that the inference that he would have us draw is reasonable. Again, in the quoted

statements, Mr. Hanson did not say, even in general terms, that he was too fatigued to

perform his work. Thus, the statements at the time they were made did not convey

that Mr. Hanson had reached a point of physical exhaustion that rendered him

incapable of performing his assigned job duties. Mr. Hanson’s brief criticizes such a

conclusion as requiring employees to use “magic words” in order to express when

28
they are too tired to work safely. We are not requiring magic words, but we do

conclude that for an employee to charge his employer with notice that the employee

has reached the point that he feels he cannot work safely, the statement should

convey more than the general complaint made by Mr. Hanson about the number of

hours he had worked.

And Mr. Hanson certainly did not say on Tuesday that he had reached the

point where he lacked the physical capabilities to perform his assigned work task of

transporting the inspector the next day—which he knew from experience would be

long—and being required to dismount his truck as he did routinely during the course

of a workday. So, he states his conclusion that there is an inference of knowledge that

he could not safely perform those tasks but leaves unexplained how his statements

imparted notice of dangerous fatigue after he had ended his long day on Tuesday

without incident, apparently went home and rested, and then almost twenty-four

hours had elapsed between the time of his vague complaint about working the

number of hours he worked on Tuesday and the time of his injury with no further

complaint about fatigue.

Apparently, the trigger for notice of his exhaustion to the Railroad is his

statement that he “might not be at work tomorrow, working to[o] many hours.”

[Emphasis added.] The inference being that the Railroad was on notice because he

expressed on Tuesday the thought that he might not come to work on Wednesday

because he was too exhausted to safely work that day. But he ignores how the

29
inference that he claims is created by his statement is impacted by the fact that he

came to work on Wednesday. Again, he never explains how this inference that he

seeks to draw survives conduct that was at odds with the action that he stated that he

would take in response to his long day on Tuesday. He also never explains how the

inference that he seeks to draw is reasonable when he not only came to work on

Wednesday but also made no complaint during the course of that day that he was too

exhausted to perform the work duties that he knew he would have during the

continuation of the federal inspection.

We agree that the law provides that a duty arises “if the railroad knew or should

have known of the employee’s diminished work capacity and, despite that knowledge,

continued to assign the employee to tasks that it knew or should have known would

aggravate his physical condition.” See Ragland, 501 S.W.3d at 780. But here,

Mr. Hanson spins out the following

• An inference based on a premise that his statements of Tuesday that

suggested that he had a diminished capacity for work when those statements

did not contain that statement.

• And then a further inference based on the premise that the Railroad should

have known that he was exhausted when he said that he might not come to

work the next day, but contrary to his statement, he came to work on

Wednesday, knowing that it entailed a long day.

30
 • And then yet a further inference based on the premise that even though he

came to work when he said he might not, the Railroad still should have

known that he was dangerously exhausted even though he worked

throughout Wednesday with no further complaint.

The inferences that Hanson seeks to draw from his statements on Tuesday to his

supervisor are simply too attenuated from the meager evidence that he uses to

support them to be reasonable to establish the ultimate fact that he contends that they

should establish—that the Railroad should have known that he was too exhausted to

perform the type of duties that he was expected to perform on Wednesday and should

have taken some action to address his incapacity. See Miller, 2018 WL 4039562, at *2.

Apparently, Mr. Hanson also seeks to impose a duty on the Railroad to

monitor his continued fitness to work; he predicates such duty on the fact that he had

worked long hours on Tuesday. Specifically, he argues,

Taking all facts and reasonable inferences in the light most favorable to
Mr. Hanson, a jury could find that the Railroad knew that a person
complaining of having worked 16 to 17 hours would be exhausted if
forced to work the next day. At minimum, the Railroad had a duty that
night to make some inquiry.

In other words, Mr. Hanson argues that the Railroad should have instituted a policy to

monitor whether he was too fatigued to work. As we have noted, an employer carries

a duty to warn and create safety policies that are calibrated based on the danger of the

work involved and the experience of the employees. See Pinok, 2004 WL 2966293, at

*4. Further, an employer has no duty to warn an employee about the dangers of

31
fatigue by training about the effects of fatigue. Escoto, 288 S.W.3d at 412–13. Because

the Railroad knew that Mr. Hanson had worked long hours the day before, he wants

to place the duty on the Railroad rather than himself for the responsibility of ensuring

that he—though he made no complaint of fatigue on the day that he was injured—

was making the right decision to continue to work. The nature of the duty advocated

by Mr. Hanson places burdens on the employer that are contrary to the restraints on

the duty that we have outlined and seeks to shift onto an employer the responsibility

that an employee of Mr. Hanson’s type has to monitor his own fitness to work.

V. Conclusion

We overrule Mr. Hanson’s single issue challenging the trial court’s summary-

judgment order, and we affirm the trial court’s summary judgment.

/s/ Dabney Bassel

Dabney Bassel
Justice

Delivered: April 7, 2022

32