Mohr v. CSX Transp., Inc.

309 So.3d 1204

Jerry MOHR

v.CSX TRANSPORTATION, INC.

1180338

Supreme Court of Alabama.

May 22, 2020

Harry B. Bailey III of JonesGranger, Atlanta, Georgia, for appellant.

Brian P. McCarthy and Jonathan M. Lieb of McDowell Knight Roedder & Sledge, LLC, Mobile, for appellee.

MITCHELL, Justice.

In April 2017, Jerry Mohr, a Mobile County resident and an employee of CSX Transportation, Inc. ("CSX"), was injured in an on-the-job accident while working on a crew that was repairing a section of CSX railroad track near the Chef Menteur Bridge in Louisiana. Mohr sued CSX in the Mobile Circuit Court, asserting a negligence claim under the Federal Employers’ Liability Act ("FELA"), 45 U.S.C. § 51 et seq. The trial court ultimately entered a summary judgment in favor of CSX. Mohr appeals that judgment, arguing that there are genuine issues of material fact that can only be resolved by a jury. We affirm the judgment.

Facts and Procedural History

Mohr has been employed by CSX in various positions since August 2000. Sometime in 2016, he began working as a traveling bridge mechanic. On April 17, 2017, Mohr was assigned to a crew making repairs to a section of railroad track that had washed out near the Chef Menteur Bridge outside New Orleans. The crew's specific job on this date involved using a crane to load bundles of sheet piling –– narrow 25-foot-long interlocking pieces of steel –– onto a flatbed railcar, transporting that loaded railcar to the area where the railroad track had washed out, and then using a crane to unload the bundles. An outside contractor then installed the sheet piling by driving it into the ground alongside the base of the railbed, thus shielding the railbed from further erosion caused by the adjacent water. Mohr and his crew loaded and unloaded railcars throughout the day on April 17, and again on April 18, without incident.

In accordance with CSX policy, each work day began with a job briefing and safety meeting at which the crew members discussed issues that might arise in connection with the tasks they were performing that day. On April 19, Mohr's crew began their day with such a meeting, which was conducted by telephone with their supervisor Brian May, who was working in Evergreen. The crew then proceeded to load, transport, and unload two more railcars of sheet piling. After loading and transporting a third railcar, they began unloading it in the same manner they had unloaded the previous railcars that day and over the two previous days. One crew member, operating a crane mounted to the end of the railcar, maneuvered the boom of the crane over a bundle of sheet piling while Mohr and another bridge mechanic, William Laufhutte, stood on the railcar at opposite ends of the bundle and attached crane cables to the chains that bundled several pieces of sheet piling together. Laufhutte also attached a "tag line" to his end of the bundle, which was used to control the load once it was lifted so that it could be guided to its destination without uncontrolled rotation. CSX's safety rules required employees working with suspended loads to use tag lines when moving loads that were to be lifted higher than knee level, but no rule dictated the number of tag lines that must be used.

After Mohr and Laufhutte finished attaching the crane cables and tag line to a bundle, they backed away and a signal was given to the crane operator to lift the bundle approximately two to three feet high. In accordance with CSX safety rules, Mohr and Laufhutte then used their gloved hands as needed to steady the bundle and to keep it parallel to the railcar as the crane began swinging the bundle to the side. Once Mohr and Laufhutte reached the edge of the railcar, they removed their hands from the bundle and a crew member on the ground, who took possession of the tag line after it was attached by Laufhutte, assumed control over the bundle, rotated it 90 degrees, and guided it as the crane placed it on the riprap covering the sloped side of the elevated railbed.¹

As the crew was unloading the third bundle from the third railcar on April 19, Mohr and Laufhutte attached the crane cables and tag line, and the bundle was lifted approximately knee high. As the crane swung the bundle toward the unloading site, Mohr steadied the bundle with his left hand and walked it to the edge of the railcar. At some point, however, the cuff of the leather work glove on Mohr's left hand became caught in the bundle of sheet piling and, as the bundle swung over the riprap covering the sloped side of the railbed, Mohr was pulled off the railcar with it. While he was suspended approximately 10 feet above the riprap, Mohr's glove tore and he fell headfirst onto the rocks below; he was knocked unconscious and his left arm was fractured. His coworkers thereafter loaded him onto an airboat, which the contractor installing the sheet piling had on-site, and he was taken to shore and transported by ambulance to a hospital.

On November 6, 2017, Mohr sued CSX under the FELA, alleging that his injuries were caused by CSX's negligent failure to provide a safe workplace. Mohr specifically alleged that CSX had acted negligently by (1) not providing proper safety gloves; (2) not mandating the use of an additional tag line to better control the suspended bundles; (3) not having sufficient employees on-site to safely unload the railcars; (4) not properly training its employees; and (5) not properly supervising its employees. Following the completion of discovery, CSX moved the trial court to enter a summary judgment in its favor, arguing there was no evidence to support Mohr's claims that CSX had breached its duty to provide a safe workplace. Mohr filed a response opposing CSX's summary-judgment motion, to which CSX filed a reply.

On December 14, 2018, the trial court heard oral arguments on CSX's summary-judgment motion, and, four days later, the trial court entered a summary judgment in favor of CSX. In its order, the trial court noted that Mohr had acknowledged during his deposition both that his crew was well trained, experienced, and knew how to properly unload sheet piling from the railcars and that they were not improperly supervised on the day of the incident. The trial court further noted that Mohr had apparently abandoned his claim that CSX had failed to provide a sufficient number of employees to safely unload the railcars because he failed to address that claim in his response to CSX's summary-judgment motion. Accordingly, the trial court held that CSX was entitled to a summary judgment on Mohr's claims that CSX had acted negligently by failing to provide proper training, proper supervision, or a sufficient number of employees for the crew to safely perform their job duties.

The trial court subjected Mohr's other two claims to further analysis:

"As for Mohr's remaining claims –– regarding the number of tag lines and type of gloves provided for the job –– Mohr has failed to submit evidence that [CSX] breached its duty. The FELA imposes a duty on employers to provide a reasonably safe workplace. Tootle v. CSX Transp., Inc., 746 F. Supp. 2d 1333, 1337 (S.D. Ga. 2010). This does not mean that an employer must eliminate all workplace dangers. Id. It requires only that they eliminate dangers ‘that can reasonably be avoided in light of the normal requirements of the job.’ Id. (quoting Stevens v. Bangor & Aroostook R.R. Co., 97 F.3d 594, 598 (1st Cir. 1996) ). Reasonable foreseeability, i.e., notice of a potential hazard[,] is an essential ingredient in FELA liability.

Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 117[, 83 S.Ct. 659, 9 L.Ed.2d 618] (1963). See alsoBarger v. CSX Transp., Inc., 110 F. Supp. 2d 648, 653 (S.D. Ohio 2000). Thus, to establish FELA negligence, Mohr was required to establish that [CSX] ‘knew or should have known of a potential workplace hazard’ and failed to remedy it. Tootle, 746 F. Supp. 2d at 1337.

"Mohr has failed to establish that [CSX's] use of standard leather work gloves and use of one tag line caused a potential hazard of which [CSX] either knew or should have known. Mohr has, moreover, not established a violation of any statute, regulation, standard, or practice that required different gloves or an additional tag line. Mohr was required to establish not that some other equipment or method was safer, but that the actual equipment or method used was not reasonably safe. Tootle, 746 F. Supp. 2d at 1338 (quoting McKennon v. CSX Transp., Inc., 897 F. Supp. 1024, 1027 (M.D. Tenn. 1995) ). He has failed to submit any such evidence. No jury could reasonably find that [CSX] failed to provide a reasonably safe place to work on these facts.

"Moreover, notice is the cornerstone of FELA liability, and Mohr has submitted no evidence whatsoever that [CSX] had notice of any potential hazard related to the standard work gloves or the use of one tag line for the job. SeeGallick, 372 U.S. at 117."

Based on these conclusions of law, the trial court entered a summary judgment in favor of CSX on all claims asserted by Mohr. Mohr thereafter filed a timely appeal to this Court, challenging the trial court's judgment only as it related to his claims involving the type of work gloves provided by CSX and CSX's policy for using tag lines.

Standard of Review

The FELA allows a railroad employee injured in a workplace accident to sue his or her employer in either federal or state court. Burlington Northern R.R. v. Warren, 574 So. 2d 758, 762 (Ala. 1990). In Glass v. Birmingham Southern R.R., 905 So. 2d 789, 792-93 (Ala. 2004), this Court explained the standard of review it applies in an appeal challenging a summary judgment entered on a FELA claim:

"Although the FELA authorizes the filing of a federal action for an employer's alleged failure to provide a safe workplace, and although the substantive law governing such cases is federal, St. Louis Southwestern Ry. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985), ‘[a]s a general matter, FELA cases

...