Walker, Rochester v. Northeast Regional ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3704
ROCHESTER WALKER,
Plaintiff-Appellant,
v.
NORTHEAST REGIONAL COMMUTER RAILROAD
CORPORATION, doing business as METRA,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97-C-304--Joan B. Gottschall, Judge.
Argued May 31, 2000--Decided August 31, 2000
Before Flaum, Chief Judge, and Bauer and
Harlington Wood, Jr., Circuit Judges.
Harlington Wood, Jr., Circuit Judge. Plaintiff-
appellant Rochester Walker brought this claim
pursuant to the Federal Employers’ Liability Act,
45 U.S.C. sec.sec. 51-61 ("FELA"), against
defendant-appellee Northeast Illinois Regional
Commuter Railroad Corporation ("Metra") for
injuries he sustained while moving a piece of
equipment from the floor to a table. The district
court granted summary judgment for Metra, and
Walker appeals.
I. BACKGROUND
On March 9, 1995, Walker was employed as a
machinist by Metra at the 49th Street Car Shop in
Chicago, Illinois. As part of Walker’s duties for
the day, he assisted machinist Edward Greer in
replacing the blades on a Benton shear, which is
used for cutting sheets of metal. Each blade was
ten feet long, four inches high, one inch wide,
and weighed approximately 140 pounds. The men
were to move the first blade, from four-inch-high
wooden blocks on the floor, to a table
approximately three feet in height.
Walker testified that the men followed proper
lifting procedure for the lift. The men squatted
down and, facing each other, took hold of the
ends of the blade. The lift was performed in
unison. The men counted to three and, with backs
straight and using their leg strength, lifted the
blade about two and a half feet, placing it on
the table. During the lift, Walker experienced
pain in his back as the blade neared the height
of the table. Walker testified that, when he
experienced the back pain, the blade was at an
angle, being higher near Greer’s end. Walker made
no estimate of the difference in the height of
the ends of the blade. Both an overhead crane
(hoist) and a forklift were available, but, due
to the configuration of the shop, the men could
not use either machine to lift the first
blade./1
Walker filed a FELA claim against Metra for
damages sustained in the lifting incident on
January 15, 1997. He alleged negligence on the
part of Metra: first, for violation of Metra
Safety Rule B 83(c);/2 second, for requiring him
to lift more than fifty pounds; and third, for
failing to make mechanical lifting devices
available for use in changing the blade./3 Metra
moved for summary judgment, arguing that the lift
was reasonably safe and done in conformity with
Metra’s lifting rules. The district court granted
Metra’s motion finding that Walker failed to
offer any evidence of negligence by Metra. Walker
filed a motion to reconsider which the district
court denied. Walker filed this timely appeal.
II. ANALYSIS
We review the district court’s grant of summary
judgment de novo. Miller v. American Family Mut.
Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000).
Summary judgment is granted where there is no
genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). In our analysis, we must
view all evidence and draw all reasonable
inferences in the light most favorable to Walker,
the non-moving party. See Miller, 203 F.3d at
1003.
Under the FELA, "Every common carrier by
railroad . . . shall be liable in damages to any
person suffering injury while he is employed . .
. 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."
45 U.S.C. sec. 51. The intent of the FELA is to
provide broad remedial measures for railroad
employees. Lisek v. Norfolk and Western Ry. Co.,
30 F.3d 823, 831 (7th Cir. 1994). In a FELA
action, the railroad will be held liable if the
employer’s "negligence played any part, even the
slightest, in producing the injury." Id. at 832
(internal quotations and citations omitted).
Although the plaintiff’s burden is significantly
lighter than in an ordinary negligence case,
evidence of the defendant’s negligence must be
presented in order to survive a motion for
summary judgment. Id.
Walker’s first claim of negligence is based on
the assertion that the difference in height
between himself and Greer caused the blade to be
lifted at an angle, resulting in a weight shift
toward Walker. However, Walker failed to show any
appreciable shift in weight as a result of the
tilt in the blade. First, Walker could not
estimate the degree of tilt, nor did he testify
that the weight of the blade shifted toward him
at any point during the lift. Second, the height
difference between the men was mistaken by
Walker’s expert, Gary Mallen. In his deposition,
Mallen understood Greer to be approximately six-
feet-three-inches tall when, according to
Walker’s brief, Greer is approximately five-feet-
eleven-and-a-half-inches tall. Walker is
approximately five-feet-eight-inches tall. Under
this misconception of difference in height,
Mallen testified that due to the height
differential Walker carried greater weight when
the blade was lifted. Mallen could not estimate
the amount of weight shift that resulted from the
uneven lift, and no new evidence was presented
once the mistake in Greer’s height was corrected.
The only estimate for tilt in the blade was given
by Greer, who testified the tilt was, at most,
one to two inches. There is no evidence that this
alleged amount of tilt resulted in a significant
weight shift; both Greer and Walker testified
that they lifted in unison, on the count of
three, and in the proper manner provided by the
safety manual and safety videos, that is, lifting
with straight backs and using their leg strength.
Also, once the misconception in height difference
was corrected, it is clear the men were similar
in height as required under Metra Rule B 83(c).
Walker next argues that Metra was negligent by
requiring him to lift more than fifty pounds.
However, Walker did not offer any evidence that
he was under a fifty-pound lifting restriction in
his position as a Metra machinist. First, despite
his assertions on appeal, Walker did not testify
that fifty pounds was the maximum lift
requirement for Metra machinists or that he was
restricted to a fifty-pound weight limit. He only
stated that machinists were required to lift
fifty pounds. Second, Walker testified that he
was unsure whether, as a machinist, he was in a
heavy duty category that required him to lift up
to one hundred pounds. Third, Walker testified
that the lifting of the blade was generally
assigned to machinists and that it was
"machinist’s work." Additionally, three of the
witnesses, including Walker’s expert, testified
that machinists occasionally were required to
lift up to one hundred pounds. Walker relies on
bid documents for the diesel house machinist and
machinist inspector positions which state that
employees must be able to lift approximately
fifty pounds. These bid documents, submitted on
the motion to reconsider, were not for the air-
break room machinist position which Walker held
and do not state that fifty pounds was the
maximum machinists were required to lift./4
Walker cites Heater v. Chesapeake and Ohio
Railway Co., 497 F.2d 1243 (7th Cir. 1974), and
Harbin v. Burlington Northern Railroad Co., 921
F.2d 129 (7th Cir. 1990), to support his
position. However, both Heater and Harbin are
distinguishable from the case at bar. The
plaintiff in Heater had to continually lift
throughout the day a heavier load than in the
present case when alternate methods were
available./5 Heater, 497 F.2d at 1247. The lift
required of Walker was a one-time lift of
approximately seventy pounds. The plaintiff in
Harbin showed evidence of the railroad’s
negligence through its disregard of complaints
made by the employees./6 Harbin, 921 F.2d at
131. Additionally, in Harbin, the plaintiff
showed the availability of alternative methods
and safeguards that would ensure employee safety.
Id. Walker stated in his testimony that he
accepted the job of changing the blade because he
assumed that he and Greer could pick up the blade
with no problem. The blade had been changed
manually before this incident, and no evidence
was presented that Walker or any other machinists
had complained about problems in changing the
blade on other occasions.
Finally, Walker argues that Metra was negligent
in configuring the shop in such a way as to
prohibit the use of mechanical lifting aids.
However, Walker failed to show that lifting the
blade manually was not a reasonably safe method.
Safer methods of lifting may be available, but
Metra need only use a reasonably safe method for
lifting the blade. See Taylor v. Illinois Cent.
R.R. Co., 8 F.3d 584, 586 (7th Cir. 1993)
(citation omitted). Walker testified that he and
Greer assumed that they could pick up the blade
and place it on the table with no problem. The
lift complied with Metra Rule B 82(h) which
requires that in cases in which mechanical
equipment is unavailable, heavy work should be
done with the assistance of fellow workers.
Walker’s expert testified that it was better to
use a mechanical device to lift whenever
possible, but agreed that machinists are
occasionally required to manually lift up to one
hundred pounds. Overall, the lift was within the
requirements of a machinist and performed in a
reasonably safe manner according to Metra’s
safety requirements. Walker presents no evidence
of negligence on the part of Metra.
III. CONCLUSION
The district court’s grant of summary judgment
is
AFFIRMED.
/1 According to Walker’s deposition, if they had
tried to use the hoist it would have been
dangerous because they would need to swing the
blade three or four feet from the hoist to the
table area. The men were not able to use the
forklift because there was a table, bolted to the
floor, in the way.
/2 Metra Safety Rule B 83(c) provides, "When two or
more persons handle heavy or bulky material or
objects, the following precautions must be taken:
. . . Place workers according to size, strength,
and experience." While Walker also cites to Metra
Safety Rule B 83(e), relating to the necessity of
coordinating team lifts, his own testimony shows
that the lift was coordinated as required by
Metra regulations.
/3 Metra Safety Rule B 82(h) provides that when
lifting: "Heavy work should be done with
mechanical equipment where available; otherwise,
with the assistance of fellow workers."
/4 The bid documents are of no help to Walker,
therefore, we will not address Metra’s arguments
as to their timeliness.
/5 The plaintiff in Heater was employed by the
railroad as a carman, inspecting and repairing
railroad cars. Heater was asked to help unload a
boxcar full of yokes that weighed over two
hundred pounds each. Heater, 497 F.2d at 1245.
/6 The plaintiff in Harbin cleaned the heating
boilers in the "roundhouse" once a year. The work
area was not ventilated and became filled with
exhaust fumes and flooded with soot and debris
from cleaning the boiler. The railroad had
received repeated complaints about the inadequate
ventilation from Harbin and other employees but
took no action. Harbin, 921 F.2d at 131.