UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ERNEST L. MESSING,

Plaintiff-Appellant,

v.

CSX TRANSPORTATION,

INCORPORATED,

Defendant-Appellee,

and No. 98-1516

UNION TANK CAR COMPANY; OLIN

CORPORATION,

Defendants,

v.

BURRIS CHEMICAL, INCORPORATED,

Third Party Defendant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, Chief District Judge.

(CA-96-188-MU)

Argued: December 2, 1998

Decided: January 15, 1999

Before WILLIAMS and MOTZ, Circuit Judges, and MICHAEL,

Senior United States District Judge for the

Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: John F. Ayers, III, DELANEY & SELLERS, P.A., Charlotte, North Carolina, for Appellant. John R. Jolly, Jr., POYNER &

SPRUILL, L.L.P., Raleigh, North Carolina, for Appellee. ON

BRIEF: Robert C. Dortch, Jr., DELANEY & SELLERS, P.A., Charlotte, North Carolina, for Appellant. Cynthia V. McNeely, POYNER

& SPRUILL, L.L.P., Charlotte, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Ernest Messing sued CSX Transportation, Inc., Union Tank Car

Co., and Olin Corp. for personal injuries sustained in a railroad car

accident, asserting negligence and negligence per se under North Carolina tort law. The district court granted summary judgment to the

defendants. The court reasoned that the Federal Railway Safety Act

preempted Messing's state tort claims and, alternatively, even if not

preempted, Messing had forecast insufficient evidence tending to

show that the defendants' negligence caused his injuries to prevail on

any of these claims. For the reasons discussed below, we affirm.

I.

On May 23, 1994, Ernest Messing sustained severe injuries in a

railroad car accident at the Burris Chemical plant in Charlotte, North

Carolina. At the time of the accident, Burris employed Messing. Burris's Charlotte plant is located adjacent to CSX Transportation, which

owns the main railroad line thereon. Burris owns and maintains the

siderail or spur leading directly to the Burris plant, which was still

under construction at the time of the accident.

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Sometime prior to the date of the accident, Olin Chemical shipped

an order of caustic soda in tank car UTXL 25324 to Burris for use in

its production of bleach. Union Tank Car Co. manufactured and

owned the tank car used for this shipment; Olin leased the car from

Union Tank Car. On May 19, 1994, CSX Transportation delivered the

shipment to the Burris plant, where it parked the tank car on Burris's

sidetrack and set the car's hand brake.

Four days later, on May 23, Burris instructed employees Messing,

Bruce Garren, and plant manager Duane Outhwaite to move tank car

UTXL 25324 from its position on the siderail to a position closer to

the plant, in order to assist a contractor working on construction of the

facility. Burris did not ask CSX to move the tank car nor did the company inform CSX of the activity until after the accident. Instead, Burris employees attempted to move the car independently.

In order to move the car, the men had to detach car UTXL 25324

from the adjacent car by pulling a pin out of the coupling device that

held the cars together. They therefore needed to create some slack in

the coupling device. Outhwaite, Messing, and Garren used a "pinch

bar" as a lever to try to inch the car toward its neighbor and create

the necessary slack. Before beginning this task, Outhwaite visually

inspected the hand brakes on the car and noted that they were fully

set and holding. As Garren and Messing attempted to move the car

using the pinch bar, Outhwaite tried to release the hand brake using

its wheel. Unable to slowly back off the brake as expected, Outhwaite

fully released the brake and then reset it so that the brake was close

to but not fully "tied down". Outhwaite repeated this procedure several times while Garren and Messing attempted to nudge the car forward. When Messing finally moved the car, Outhwaite pulled the pin

and uncoupled the cars.

Outhwaite testified that he expected the car to remain stationary

following the uncoupling procedure, held in place by the hand brake.

Once unleashed, however, tank car UTXL 25324 began to move

down the track toward Messing. Garren soon alerted Outhwaite that

Messing was trapped under the car. Outhwaite ran to the platform and

tightened the hand brake as much as he could -- a few more clicks

-- but the car continued to roll. It eventually stopped approximately

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35-40 feet down the track, with Messing pinned underneath. Injuries

sustained in the accident led to the amputation of Messing's left leg.

Messing alleges common law negligence on the part of all defendants and negligence per se against defendant CSX for violating the

hand brake standards set forth in the Federal Safety Appliance Act.

See 45 U.S.C.A. § 11 (1986) (repealed 1994 and recodified at 49

U.S.C.A. § 20302 (1997)). The defendants counter that Messing has

failed to forecast evidence sufficient to make out a claim for common

law negligence or negligence per se and that, even if Messing had

enough evidence to sustain such charges, the Federal Railway Safety

Act (FRSA) preempts his state tort claims. Because we conclude that

Messing has failed to forecast sufficient evidence to make out a claim

under North Carolina law, we need not address the question of

whether the FRSA would preempt valid state law claims in this context.

II.

Messing alleges negligence against all defendants. In North Carolina, "[t]he elements of a cause of action based on negligence are:

[1] a duty, [2] breach of that duty, [and 3] a causal connection

between the conduct and the injury and actual loss." Davis v. North

Carolina Dept. of Human Resources, 465 S.E.2d 2, 6 (N.C. App.

1995). Even if we assume, for purposes of summary judgment, that

defendants owed a legal duty to Messing in this context -- that of

providing an efficient hand brake on the tank car-- Messing has

failed to forecast any evidence that the defendants breached this duty

or that such a breach was the proximate cause of Messing's injuries.

To demonstrate breach, Messing must show that the hand brake did

not "conform to the standard required." Id. (internal quotation marks

omitted). To prove proximate cause, he must show that it was reasonably foreseeable to a "person of ordinary prudence," that such a defective hand brake would cause injury to a person in Messing's position.

Id. (internal quotation marks omitted). Messing has utterly failed to

forecast such evidence.

None of the experts in this case was able to point to any evidence

of a defect in the hand brake's design or functioning that might have

caused the accident. Nor could the experts articulate any reasonable

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act or omission on the part of defendants that would have prevented

the occurrence. Indeed, the experts made numerous suggestions as to

the possible causes of the accident, but each was vague and unsubstantiated. No evidence in the record before us connects any of these

proffered causes to an act or omission on the part of any of the defendants.

For example, Messing argues that defendants breached their duty

because they failed to inspect the car properly. However, Messing's

own expert, Colon Fulk, explained that a visual inspection would not

have revealed all potential causes of the brake failure, such as the

need for lubrication or the presence of foreign debris in the mechanism, and that defendants were not required to perform a more

through inspection in this circumstance. Moreover, it is undisputed

that Outhwaite performed his own visual inspection before attempting

to move the tank car and found no deficiencies in the brake system.

Hence, Messing has forecast no evidence that defendants, exercising

reasonable care, should have learned of these possible defects.

Finally, even if defendants breached their duty to Messing, he has

proffered no evidence that such a breach was the proximate cause of

his injuries. To the contrary, Messing's experts were unable to connect the only evidence of a malfunctioning hand brake -- Outhwaite's

inability to slowly loosen the brake -- to the cause of the accident.

The experts' suggestions therefore remain mere theories without connection to defendants' conduct; these are insufficient to defeat summary judgment. See Hinkle v. City of Clarksburg , 81 F.3d 416, 423

(4th Cir. 1996) (claim "based on a theory without proof" was "ripe for

an adverse summary judgment determination").

Messing's claim of negligence based on defendant CSX's failure

to bunch the slack between the rail cars likewise must fail because he

has forecast no evidence tending to show that CSX knew or should

have known that Burris employees would try to move the cars from

the spur on their own. In fact, Outhwaite testified at his deposition

that Burris had never used the pinch bar to move cars at the Charlotte

site prior to the day of the accident. Outhwaite also explained that

Burris intended to allow CSX to move the tank cars onto the site as

they were needed. The pinch bar was to be used to move the cars "no

more than a couple of feet" in order to precisely align the cars to the

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mechanisms at the plant. Burris employees moved the tank car

involved in Messing's accident from its stationary position on the siderail in order to accommodate a contractor; this was not a typical

maneuver that CSX should have anticipated. See Bolkhir v. North

Carolina State Univ., 365 S.E.2d 898, 901 (N.C. 1988).

The record thus contains no evidence tending to show that defendants knew or should have known either that the hand brake was not

functioning properly or that Burris employees would attempt to move

the car from the spur.

Finally, Messing's claim of negligence per se against defendant

CSX must also fail. Messing claims that CSX violated the Federal

Safety Appliance Act because the hand brake on tank car UTXL

25324 was inefficient at the time of the accident. See 49 U.S.C.A.

§ 20302. Violation of a safety statute constitutes negligence per se in

North Carolina. See e.g., Hart v. Ivey , 420 S.E.2d 174, 177 (N.C.

1992); Lamm v. Bissette Realty, Inc., 395 S.E.2d 112, 114 (N.C.

1990). Messing has offered expert testimony that car UTXL 25324's

hand brake was inefficient at the time of the accident. Evidence of the

violation alone, however, is not enough to impose liability on defendant CSX. In order to make a claim for negligence per se in North

Carolina, the plaintiff must show that the defendant knew or should

have known that the statute had been violated, that the defendant

failed to remedy the violation, and that the violation was the proximate (i.e. foreseeable) cause of the injury suffered by plaintiff. See

Lamm, 395 S.E.2d at 114. Again, Messing's failure to show that CSX

knew or should have known of any fault or inefficiency in the hand

brake is fatal to his claim.

III.

Accordingly, the district court's order granting summary judgment

to defendants is

AFFIRMED.

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