Kevin Smith v. Union Pacific Railroad Company , 671 F. App'x 556 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KEVIN SMITH, No. 15-15139
Plaintiff-Appellant, D.C. No.
2:12-cv-00656-TLN-CKD
v.
UNION PACIFIC RAILROAD MEMORANDUM*
COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted December 14, 2016**
San Francisco, California
Before: KOZINSKI, BYBEE and N.R. SMITH, Circuit Judges.
The Federal Employers’ Liability Act (FELA) was enacted “to secure jury
determinations in a larger proportion of cases than would be true of ordinary
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 2
common law actions.” Mendoza v. S. Pac. Transp. Co., 733 F.2d 631, 633 (9th
Cir. 1984). Only “‘slight’ or ‘minimal’ evidence is needed to raise a jury question
of negligence under FELA.” Id. at 632 (citations omitted). Smith identifies a
number of disputed factual issues: Did Union Pacific salt the parking lot on
January 15, 2009? Would snow spikes have been available to Smith? Would
Smith’s injuries have been prevented had he been wearing snow spikes? On this
record, it is “not outside the possibility of reason” that Union Pacific was
negligent. Id. at 633. Because the question of negligence should be decided by a
jury, S. Pac. Co. v. Guthrie, 180 F.2d 295, 300 (9th Cir. 1949), summary judgment
was not appropriate.
REVERSED and REMANDED.