Ezell v. BNSF Ry. Co.

949 F.3d 1274

George M. EZELL, Plaintiff - Appellant,

v.BNSF RAILWAY COMPANY, Defendant - Appellee.

No. 19-6018

United States Court of Appeals, Tenth Circuit.

FILED February 5, 2020

Richard L. Carlson, Hunegs, LeNeave & Kvas, P.A. (William Kvas, Hunegs, LeNeave & Kvas, P.A., and Clint Russell, Stratton Taylor, and Mark H. Ramsey, Taylor Foster Law Firm, with him on the briefs), Wayzata, Minnesota, for Appellant.

George R. Mullican (Christopher D. Wolek and Michael Womack with him on the brief), of Mullican & Hart, P.C., Tulsa, Oklahoma, for Appellee.

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.

PHILLIPS, Circuit Judge.

Throughout American history, railroad workers have risked their lives and limbs to satisfy our Nation’s need to have freight shipped across the United States. To recompense those workers for the injuries they suffer from their occupation, Congress enacted the Federal Employers Liability Act (FELA), 45 U.S.C. §§ 51 – 60. FELA permits injured railroad workers to sue their railroad employers for negligence. To succeed, employees must present some evidence showing that their workplaces were not reasonably safe. For purposes of summary judgment, we credit George Ezell’s account that to complete his assigned task, he had to climb railcar ladders to see which railcars were more than half full of ballast. Even with that, the evidence establishes that to do their jobs railroad conductors need to climb the ladders and that this is a reasonably safe activity. For that reason, we agree with the district court’s dismissal of this case. Ezell’s proffering what he believes are safer alternatives does not show negligence. We affirm.

BACKGROUND

I. Factual Background

Ezell was a conductor for BNSF Railway Company. On May 2, 2014, the trainmaster, Michael Castleberry, directed Ezell to detach twenty ballast-loaded railcars from a train about to enter the Enid, Oklahoma train yard. Earlier that day, a maintenance-of-way crew had used ballast from at least some of the railcars while working to maintain the track. Ezell testified that Castleberry did not tell him what counted as a loaded railcar. But Ezell testified that Shawn Jernigan, the yardmaster, had previously told him to treat ballast railcars as loaded if they were more than half full.¹ Jernigan contested ever doing so.

As Ezell took charge of the entering train, two crews previously with the train left it. The first was the maintenance-of-way crew, and the second was a crew that Ezell’s crew was relieving. Despite internal rules that Ezell asserts required them to "keep a good list"—a list that he says would have documented "empties and loads"—neither crew provided him with such a list. Appellant’s Opening Br. 8.²

Before Ezell’s crew moved the train into the Enid railyard, Devon Miller, its brakeman, went ahead to configure the yard switches. Earlier, Miller had obtained a list of the train’s railcars from Jernigan. As the train slowly entered the railyard, Miller noted for each railcar whether its wheel-assembly springs were compressed. He marked the railcars with compressed springs as loaded. Miller testified that he gave the list to Ezell. But Ezell could not remember getting the list. Whether he did or not, Ezell testified that even with Miller’s list he would still have needed to climb the railcar ladders to see which were more than half full of ballast—a more precise determination than compressed springs would give.³

During his three years with BNSF, Ezell had been involved with several ballast trains. He testified that he had often checked the content of the railcars by climbing the railcar ladders and looking inside. On this day, he used that same method for each inspection—he would climb the railcar ladder, reach with his left hand to grab "the top lip" (or flange), and then pull himself up to look inside the railcar.

Ezell safely performed this method for five or six railcars, but while inspecting the next railcar, his left hand slipped from the flange after he had let go of the ladder rung with his right hand. He was unable to resecure a grip with either hand and fell several feet to the ground, fracturing his right leg, right ankle, and left foot.

II. Procedural Background

Under FELA and the Federal Safety Appliance Act (FSAA), 49 U.S.C. §§ 20301 – 20306, Ezell sued BNSF for failing to provide him with a reasonably safe place to work. BNSF moved for summary judgment, arguing that its railcar complied with the governing safety regulations and that Ezell had offered no evidence of BNSF’s negligence. Ezell partially opposed that motion, claiming that BNSF had breached its duty to him in three ways: (1) by not having the maintenance-of-way crew or the train crew provide him with a list of the empty railcars, (2) by failing to provide him a tool to eliminate any need to climb the railcar ladders (a stick of some sort with a mirror), and (3) by failing to implement a policy defining what constituted a loaded railcar. Ezell conceded that his FSAA claim should be dismissed.

The district court granted summary judgment for BNSF on Ezell’s FELA claim. On two bases, it ruled that "the undisputed evidence show[ed] that BNSF fulfilled its duty to provide Ezell with a safe place to work and with adequate and reasonably safe tools and equipment." Appellant’s App. vol. 2 at 286. First, as Ezell admits, the railcar complied with federal regulations and was in good condition. Second, after considering testimony from Ezell’s expert, Colon R. Fulk, the district court concluded that climbing a railcar is a safe activity and that it "is a regularly performed function of a conductor." Id. at 287. Because the evidence showed that BNSF provided a safe workplace even with conductors climbing railcar ladders, the district court concluded that Ezell’s argument that BNSF could have provided even safer alternatives to climbing would not suffice to show any BNSF negligence.

This appeal followed. We have appellate jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

I. Standard of Review

We review de novo the district court’s grant of summary judgment against Ezell’s FELA claim. May v. Segovia , 929 F.3d 1223, 1234 (10th Cir. 2019) (quoting Tuckel v. Grover , 660 F.3d 1249, 1251 (10th Cir. 2011) ). We affirm "if the movant show[ed] that there [was] no genuine dispute as to any material fact and the movant [was] entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In making that decision, we view the evidence "in the light most favorable to the non-moving party." Schulenberg v. BNSF Ry. Co. , 911 F.3d 1276, 1285 (10th Cir. 2018) (internal quotation marks omitted) (quoting Libertarian Party of N.M. v. Herrera , 506 F.3d 1303, 1309 (10th Cir. 2007) ). After "the moving party has identified a lack of a genuine issue of material fact, the nonmoving party has the burden to cite to ‘specific facts showing that there is a genuine issue for trial.’ " May , 929 F.3d at 1234 (quoting Schneider v. City of Grand Junction Police Dep’t , 717 F.3d 760, 767 (10th Cir. 2013) ). The nonmoving party must be specific to satisfy its burden, either by "citing to particular parts of materials in the record" or by showing that the moving party has relied on insufficient or inadmissible evidence. Fed. R. Civ. P. 56(c)(1)(A)–(B).

II. Deficient Appendix and New Theories

BNSF argues that we should not reach the substantive issues because Ezell has made procedural errors.

First, BNSF points out that Ezell failed to include in his appendix the summary-judgment briefing in the district court. BNSF argues that comparing his district court briefing with his appellate briefing shows that Ezell is making new arguments on appeal. The issue is easily resolved. BNSF may cure the problem and "file a supplemental appendix of [its] own." Milligan-Hitt v. Bd. of Trs. , 523 F.3d 1219, 1231 (10th Cir. 2008) (citing 10th Cir. R. 30.2(A)(1) ). BNSF has done so, and we now have what we need to consider BNSF’s argument.

Next, BNSF claims that in the district court Ezell "failed to raise the bulk of theories that he [now] offers." Appellee’s Resp. Br. 17. BNSF lists the following as new "theories":

1. FELA plaintiffs only have the burden of showing slight negligence by the defendant.

2. BNSF’s failure to follow its own rules creates a jury question.

3. By enacting its rules, BNSF recognized a need for them.

4. BNSF’s work methods were inadequate since they were subjective.

5. BNSF had an obligation to provide better tools—that is, tools that would allow employees to determine if a railcar was loaded without requiring them to climb railcars.

6. Ezell’s testimony creates a genuine issue of material fact.

But Ezell raised all six of these theories before the district court:

1. Ezell argued that BNSF could be liable if he showed that, "no matter how small" it was, BNSF’s negligence played a role in causing his injury. Appellee’s Suppl. App. vol. 2 at 165 (citation omitted).

2. Ezell claimed that the jury could find that BNSF breached its duty because it failed to provide him "with a list showing cars which were loaded versus empty." Id. at 166.

3. Ezell stated that providing a list was the "best practice[ ]" and that BNSF was negligent for not following its "best practice." Id. at 164, 166.

4. Ezell claimed that BNSF breached its duty because it did not adopt specific guidelines or procedures to determine whether railcars were empty, instead simply requiring employees to bang on the sides to decide if they thought the railcars sounded hollow.

5. Ezell argued that BNSF was negligent for not using a modified brake stick, a tool that would "allow[ ] workers to inspect the inside of cars for loads without having to climb on the car." Id. at 166–67.

6. Ezell stated that there were "[a]dditional facts precluding judgment as a matter of law." Id. at 160. To support that contention, he cited his deposition to dispute numerous facts asserted by BNSF—such as whether he was instructed that a railcar was loaded if it was more than half full and that

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