Volner v. Union Pacific Railroad Company , 509 F. App'x 706 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 31, 2013
Elisabeth A. Shumaker
Clerk of Court
ANTHONY VOLNER,
Plaintiff-Appellant,
No. 11-7081
v. (D.C. No. 6:11-CV-00003-JHP)
(E.D. Okla.)
UNION PACIFIC RAILROAD
COMPANY,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.
Anthony Volner appeals from the district court’s order granting summary
judgment to Union Pacific Railroad Co. on his Federal Employer’s Liability Act
(FELA), 45 U.S.C. §§ 51-60, claim. He alleges Union Pacific failed to provide a safe
workplace and required him to engage in unsafe job duties. We affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. BACKGROUND
Mr. Volner worked for Union Pacific for five and one-half years in various
capacities. In November 2009, while working as a trackman on a section gang
putting in railroad ties, he allegedly injured his neck. He did not file an incident
report that day, but he told the foreman and supervisor that his neck hurt and his arm
tingled. After seeing neurosurgeon, Dr. Patrick Han, Mr. Volner completed a
personal injury report on January 12, 2010. In the report, he admitted that he could
not state what date he was injured, where he was injured, the activity he was
performing when he was injured, what caused his injury, or what tools caused the
injury. He indicated “NA” for the question asking whether other persons witnessed
or knew of the injury.
Nearly a year later, Mr. Volner filed his complaint for damages asserting a
number of claims relating to the safety of the workplace and the demands of the work
he was assigned to do. Union Pacific moved for summary judgment. It asserted that
Mr. Volner failed to show negligence by Union Pacific and that his work caused his
injuries.
The district court granted summary judgment. Although recognizing that a
relaxed standard of causation applied under FELA, the court determined that
Mr. Volner still had the burden to first prove Union Pacific’s negligence, which, as a
matter of law, he did not do. The court noted that Mr. Volner could not recall a
specific activity, defective tool, or specific working condition causing his neck
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injury, nor did he specify in his personal injury report the date he was injured, where
he was injured, the specific activity he was engaged in when he was injured, what
caused the injury, or what tools caused the injury. In addition, the court concluded
that Mr. Volner failed to show a defect in the premises or equipment, Union Pacific’s
notice of the defect, his request for a transfer to another job, or that he informed
Union Pacific that work was causing his problems. Finally, with respect to causation,
the court determined as a matter of law that Mr. Volner failed to present competent
expert testimony to establish a link between his injuries and his work.
II. ANALYSIS
“We review the district court’s grant of summary judgment de novo, applying
the same legal standard used by the district court.” Kimzey v. Flamingo Seismic
Solutions Inc., 696 F.3d 1045, 1048 (10th Cir. 2012) (internal quotation marks
omitted). We review the evidence and draw reasonable inferences from the evidence
in the light most favorable to the nonmoving party, Mr. Volner. See id. Summary
judgment is appropriate “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A mere scintilla of evidence will not suffice to allow a
nonmoving party to survive summary judgment.” Smith v. Rail Link, Inc., 697 F.3d
1304, 1309 n.2 (10th Cir. 2012).
Mr. Volner recognizes that these summary judgment standards apply. But he
argues that the district court failed to recognize that summary judgment is appropriate
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only if there was no reasonable basis for a jury to find for him. See Gadsden v. Port
Auth. Trans-Hudson Corp., 140 F.3d 207, 209 (2nd Cir. 1998) (“Under the FELA,
the case must not be dismissed at the summary judgment phase unless there is
absolutely no reasonable basis for a jury to find for the plaintiff.” (internal quotation
marks omitted)). Regardless of whether the district court recognized this standard,
we conclude as a matter of law, as discussed below, that there was no reasonable
basis for a jury to find for Mr. Volner and the district court therefore correctly
granted summary judgment.
FELA holds railroads liable for injuries to employees resulting from the
railroad’s negligence. See 45 U.S.C. § 51. An employee must prove that (1) his
injuries occurred within the scope of his employment; (2) he was employed as part of
the railroad’s interstate transportation business; (3) the railroad was negligent; and
(4) the negligence at least in part caused the injury for which the employee seeks
compensation. Van Gorder v. Grand Trunk W. R.R., 509 F.3d 265, 269 (6th Cir.
2007). Only the third and fourth prongs are at issue in this appeal.
We first consider whether Union Pacific was negligent. Mr. Volner has the
burden to show the common law negligence elements of duty, breach, foreseeability,
and causation. See Hardyman v. Norfolk & W. Ry., 243 F.3d 255, 258 (6th Cir.
2001); see also Huffman v. Union Pac. R.R., 675 F.3d 412, 418 (5th Cir. 2012)
(“[N]egligence . . . requires proof of breach of a standard of care, causation, and
damages.” (citing Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 540 (1994))),
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cert. denied, ___ S. Ct. ___, 2013 WL 57123 (Jan. 7, 2013). It is not enough that
Mr. Volner was injured; Union Pacific must actually be negligent for there to be
liability under FELA. See Consol. Rail Corp., 512 U.S. at 543. If Union Pacific was
negligent, Mr. Volner “need only show that its negligence contributed even slightly
to his injury. . . . [T]he relaxed causation standard under FELA does not affect his
obligation to prove that [Union Pacific] was in fact negligent.” Van Gorder,
509 F.3d at 269.
Mr. Volner argues that the district court erred in holding that Union Pacific
was not negligent. He maintains that he proved negligence because he testified at his
deposition that he suffered an acute injury while placing railroad ties in November
2009, after the number of men on the crew and the tools had been diminished during
his time with Union Pacific. Further, he contends that Union Pacific negligently took
no action after it was informed of his injury and continually assigned him to shifts,
resulting in cumulative trauma injury.
We agree with the district court that Mr. Volner, as a matter of law, failed to
meet his burden of showing negligence. Although he states that he suffered an acute
injury, Mr. Volner could not point to a defective tool or a working condition that
caused the injury. When he notified Union Pacific on January 12, 2010, about the
November 2009, injury he could not identify the date of his injury, where he was
injured, what he was doing when injured, or what caused his injury. Union Pacific
presented a report from an expert, Greg G. Weames, that stated Mr. Volner’s job
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duties did not present an increased risk for the development of cervical spine
degeneration. Mr. Volner did not challenge the report. At no time did he provide
evidence that his job was unreasonably dangerous, that the tools he used were
inadequate, or that his workplace was not safe. The physical demands of his job
alone are insufficient to show negligence. See Tootle v. CSX Transp., Inc.,
746 F. Supp. 2d 1333, 1337-38 (S.D. Ga. 2010); see also Consol. Rail Corp.,
512 U.S. at 543 (FELA is not workers compensation statute). His difficulty
performing his job is not enough to show the job was unsafe or that Union Pacific
required him to perform the job in an unsafe manner. See Lewis v. CSX Transp., Inc.,
778 F. Supp. 2d 821, 837 (S.D. Ohio 2011).
Accordingly, Mr. Volner has not presented any evidence showing that Union
Pacific breached a duty by failing to use ordinary care or failing to do what a
reasonably prudent person would do to make the work environment safe. See Van
Gorder, 509 F.3d at 269 (citing Tiller v. Atl. Coast Line R.R., 318 U.S. 54, 67
(1943)). Nor has he shown that Union Pacific “knew, or by the exercise of due care
should have known, that prevalent standards of conduct were inadequate to protect
[him] . . . .” Urie v. Thompson, 337 U.S. 163, 178 (1949) (internal quotation marks
omitted). Regardless of whether Mr. Volner suffered from an acute injury or a
cumulative trauma, he failed to make even a slight showing that Union Pacific was
negligent. Thus, we conclude that the district court correctly decided as a matter of
law that Mr. Volner failed to show negligence.
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Because Mr. Volner has failed as a matter of law to show negligence, we need
not consider whether he made a showing of causation. Accordingly, we conclude the
district court properly granted Union Pacific’s motion for summary judgment.
The judgment of the district court is affirmed.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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