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MCKENNON v. CSX TRANSP.

March 22, 1994

JOSEPH MCKENNON, Plaintiff,
v.
CSX TRANSPORTATION, INC., Defendant.



The opinion of the court was delivered by: ROBERT L. ECHOLS

 Presently pending before this Court is Defendant's Motion for Summary Judgment to which the Plaintiff has responded in opposition. For the reasons outlined herein, Defendant's Motion for Summary Judgment is GRANTED.

 Plaintiff was a CSX employee who brings this Federal Employers' Liability Act ("FELA") claim as a result of a work-related injury to his left shoulder. Plaintiff alleges that Defendant's negligence caused such injury. Defendant has moved for summary judgment.

 In ruling on a motion for summary judgment, this Court must construe the evidence produced in the light most favorable to the non-moving party, drawing all justifiable inferences in his or her favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A party may obtain summary judgment if the evidentiary material on file shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of satisfying the court that the standards of Rule 56 have been met. See Martin v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986). The ultimate question to be addressed is whether there exists any genuine issue of material fact which is disputed. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. If so, summary judgment dismissal is inappropriate.

 Plaintiff was a foreman with the Defendant, CSX. On the day of his injury, he and his crewman joined the assistant roadmaster and others to repair a switch that had been damaged by a derailment. (Plaintiff's Dep. at 42-43.) After a safety meeting, the men began replacing damaged railroad ties. (Id. at 47-49.) Plaintiff and his partner worked all day spiking tie plates, which hold the rails, to new ties which were inserted beneath the plates. (Id. at 50-52.) Plaintiff's partner would insert a tie under the tie plate and position the plate on top of the tie. Plaintiff then would secure each plate by driving a spike through it and into the tie. (Id. at 56-57.) In driving the spikes, Plaintiff used a "spike maul," a nine-pound tool similar to a sledgehammer. (Id. at 35.)

 It is undisputed that there were no hazards in the work area. (Id. at 53-54.) Plaintiff concedes that neither he nor his fellow workers had violated any safety rule or regulation. (Id. at 111.) Plaintiff further concedes that his spike maul was not defective in any way. (Id. at 53-54.) It is undisputed that the group was working at normal pace on that day, and that the individuals composing the group were free to take breaks as necessary. (Id. at 122-23.) Prior to the incident, Plaintiff's shoulder had given him no problems. He had not asked to be relieved of his duties that day. Indeed, he had no reason to anticipate that there was any reason to do so. (Id. at 59-60.) Plaintiff has "no idea" why or how the injury occurred. (Id. at 63-64.)

 However, Plaintiff contends that Defendant could have done any of three things to prevent his injury. First, he contends that CSX should have provided the group a machine to assist in driving the spikes. Second, Plaintiff contends that Defendant should have provided more workmen to perform the job that he and four other workmen were doing. Finally, Plaintiff contends that CSX should have used younger men to drive spikes.

 FELA provides:

 
Every common carrier by railroad while engaging in commerce between any of the several states . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . 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, or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.

 45 U.S.C. ยง 51 (1988).

 FELA does not make the railroad an insurer. To recover under FELA, "a plaintiff must 'prove the traditional common-law elements of negligence: duty, breach, foreseeability, and causation.'" Adams v. CSX Transp., Inc., 899 F.2d 536, 539 (6th Cir. 1990) (quoting Robert v. Consol. Rail Corp., 832 F.2d 3, 6 (1st Cir. 1987)); Inman v. Baltimore & O. R.R., 361 U.S. 138, 4 L. Ed. 2d 198, 80 S. Ct. 242 (1959); Brady v. Southern Ry. Co., 320 U.S. 476, 88 L. Ed. 239, 64 S. Ct. 232 (1943). Clearly, Defendant had a duty to provide a safe workplace for Plaintiff. However, Plaintiff has established neither a breach of that duty, nor the foreseeability of Plaintiff's injury. *fn1" Under FELA, an employer is not liable for failing to provide a safe work environment if the employer had no reasonable way of knowing that potential hazards existed. Gallick v. Baltimore & O. R.R., 372 U.S. 108, 117, 9 L. Ed. 2d 618, 83 S. Ct. 659 (1963); Urie v. Thompson, 337 U.S. 163, 93 L. Ed. 1282, 69 S. Ct. 1018 (1949).

 First, Plaintiff contends that a machine should have been used. Plaintiff's crew generally did not use the machine and normally used spike mauls instead. (Plaintiff's Dep. at 76.) On the day of the injury, one of the workers suggested using the machine, but the assistant roadmaster refused. (Id. at 64-65.) Plaintiff admits that his spike maul was not defective and was a safe and appropriate tool for the job he was performing. (Id. at 53-54.) It simply is Plaintiff's contention that the use of the machine "would have saved [the workers from] using [spike mauls] all day." (Id. at 70.)

 The fact that there may have been an automated, or safer method, of work does not automatically render the chosen method unsafe or negligent for purposes of FELA. Chicago R.I. & Pac. R.R. v. Lint, 217 F.2d 279, 282-83 (8th Cir. 1954). Under FELA, the proper inquiry is whether the method prescribed by the employer was reasonably safe, not whether the employer could have employed a safer alternative method for performing the task. Stillman v. Norfolk & W. Ry., 811 F.2d 834 (4th Cir. 1987). "That there are other, arguably more advanced, methods in use by the defendant for [accomplishing the task at hand] is of no significance where the method in use by [the plaintiff] was not an inherently unsafe one." Soto v. Southern Pac. Transp., 644 F.2d 1147, 1148 (5th Cir. 1981), cert. denied, 454 U.S. 969, 70 L. Ed. 2d 386, 102 S. Ct. 514 (1981)). Where "the task at which [plaintiff] ...


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