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Jones v. Norfolk Southern Railway Co.6/28/2002
oad bridges and buildings and in carpentry work. The job requires the use of heavy equipment, such as air hammers and cutting torches, and the handling of large pieces of concrete and other materials, including large wooden forms weighing approximately 140 pounds. The facts offered at the trial of this matter reveal that the B&B;employees, who work in five man crews, engage in "constant" twisting and bending motions, often while handling the heavy equipment and materials.
. Nonetheless, the record of this cause also reveals that B&B;employees are allowed to work at their own pace, take breaks whenever they choose and, if the crew is short one man, frequently are combined with another crew for the day. Furthermore, co-workers are available to aid in the lifting of the heavier materials. In addition, the record discloses that the workers were required to attend monthly safety meetings (Later in appellant's employment, these were supplanted by daily safety discussions) and receive daily job briefings. In these meetings and briefings, the safety rules are discussed, crew members are informed of the particular tasks to be performed and are told how to safely perform those tasks. Emphasis is placed on the way to lift materials and equipment to avoid injury , the proper posture for performing the task, how to handle the equipment and the like.
. It is undisputed that, in December 1997, appellant underwent surgery for the removal of disc material extruding from two herniated discs in his back. The fact that appellant suffered pain both before and after this surgery and was treated for pain by various methods over the next two years is also undisputed. The dispute in this case centers on whether appellee was negligent in this instance and whether that negligence, if any, caused the herniated discs.
. "To prevail on a FELA claim, a plaintiff must 'prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation.'" Adams v. CSX Transp., Inc. (C.A.6, 1990), 899 F.2d 536, 539, quoting Robert v. Consol. Rail Corp. (C.A.1, 1987), 832 F.2d 3, 6. In the Sixth Circuit, the employee must present more than a scintilla of evidence on the elements of his or her claim to create a jury question, "but not much more." Aparico v. Norfolk & Western Ry. Co. (C.A. 6, 1996), 84 F.3d 803, 810. However, while FELA is construed liberally in favor of a railroad employee, it is not a workers' compensation statute. Consolidated Rail Corp. v. Gottshall (1994), 512 U.S. 532, 543.
. "A railroad has a duty to use reasonable care in furnishing its employees with a safe place to work" see Atchison, Topeka and Santa Fe Ry. Co. v. Buell (1987), 480 U.S. 557, 558, and to afford such protection against known dangers as can be expected from a person exercising ordinary care under those circumstances, see Aparico v. Norfolk & Western Ry. Co. at 810-811.
. In viewing the evidence adduced in the present case in a light most favorable to appellant, we can only conclude that he failed to offer even a scintilla of evidence tending to show that appellee breached any duty to provide a reasonably safe workplace for the B&B;crew and/or failed to provide protection from known dangers. Even though it is undisputed that the crew maintaining and repairing bridges engages in strenuous, difficult work, this fact, in and of itself, is insufficient to establish a breach of duty. To find it sufficient would be tantamount to imposing strict liability on an employer. See Williams v. Long Island R.R. (C.A. 2, 1999), 196 F.3d 404, 406 (FELA is not a strict liability statute and the fact that an employee is injured is not proof of negligence).
. On the
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