*

The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of Tennessee, sitting

by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0471p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ELMER VAN GORDER,

Plaintiff - Appellant,

v.

GRAND TRUNK WESTERN RAILROAD, INC., a

division of Canadian National,

Defendant-Appellee.

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No. 06-2451

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 05-70380—Gerald E. Rosen, District Judge.

Argued: September 17, 2007

Decided and Filed: December 11, 2007 

Before: BATCHELDER and GILMAN, Circuit Judges; VARLAN, District Judge.*

_________________

COUNSEL

ARGUED: Steven L. Kantor, KANTOR & GODWIN, Williamsville, New York, for Appellant.

Richard A. Dietz, FOSTER, MEADOWS & BALLARD, Detroit, Michigan, for Appellee.

ON BRIEF: Steven L. Kantor, KANTOR & GODWIN, Williamsville, New York, for Appellant.

Richard A. Dietz, FOSTER, MEADOWS & BALLARD, Detroit, Michigan, for Appellee.

_________________

OPINION _________________

ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Elmer Van Gorder (“Van

Gorder”) appeals the district court’s order granting summary judgment in favor of DefendantAppellee Grand Trunk Western Railroad (“Grand Trunk”) in this negligence action filed pursuant

to the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51, et seq. Van Gorder claims that

the district court erred in finding that there were no genuine issues of material fact regarding the

reasonableness of Grand Trunk’s railcar inspections and that he had not established a prima facie

negligence case. Finding no merit in Van Gorder’s contentions, we AFFIRM.

1
No. 06-2451 Van Gorder v. Grand Trunk Western Railroad Page 2

I. BACKGROUND

Van Gorder began working at Grand Trunk on July 22, 1970, more than 33 years prior to the

incident in question, which occurred on October 17, 2003. Grand Trunk initially hired Van Gorder

as a T-carman. From 1981 until the time of the incident, Van Gorder served as a carman at the

General Motors loading dock on David Road, at Grand Trunk’s Flint Yard in Flint, Michigan.

Van Gorder’s main task on the day of the incident was to remove bridge plates between the

loaded bi-level railroad cars and close the doors of the cars to prepare them for transport. Prior to

this preparation and consistent with the railroad’s usual practice, other Grand Trunk employees

conducted two inspections of the railcars on which Van Gorder worked. Those “pre-trip”

inspections are intended to discover defects in the cars and entail, among other things, looking at the

doors to see visible problems, and opening, but not closing the doors.

In the course of his duties, Van Gorder attempted to close the “clamshell door” on one of the

railcars. The door closed about halfway, or two to three feet, and then abruptly stopped, causing

Van Gorder to stumble and his hands to slip off the door handle, resulting in an injury to his

shoulder. Van Gorder is currently receiving approximately $2,600 per month in Railroad Retirement

Disability because of his shoulder injury, for which he had replacement surgery on August 17, 2004.

Following the incident, Van Gorder immediately reported his injury to his superiors, then

went to the hospital for examination. Robert F. Miller, Car Foreman, John P. Jacques (“Jacques”),

Mechanical Department Supervisor and Technical Officer — Pool Operations, Ron Lord, Flint

Assistant Superintendent, Hunt Carey, Flint Superintendent, and David Cromie, Risk Mitigation

Officer, all inspected the railcar after Van Gorder returned from the hospital. Van Gorder was

present for at least some of the inspection.

During the inspection, the Grand Trunk employees determined — through the process of

elimination — that the canopy bolt on top of the AR door, which at least partially controlled the

door’s movement, was worn. Although the door opened properly, because of the condition of the

bolt, the door would “hang up” and become stuck while it was being closed.

The defective bolt — or, at least, the defective condition of the bolt — was not visible from

the ground. After the incident, Jacques got into a man-lift machine and viewed the door and bolt

from above. The wear on the bolt was not visible from this vantage point either, because it was in

an area “sandwiched between the roof and the canopy.” That is, the defect would only manifest

itself when someone attempted to close the door, and was only visible when the top portion of the

door was taken apart. An inspection from above, either in a man-lift machine or from the ladders

on the sides of the railcar, would not reveal the defect. Moreover, Grand Trunk does not allow its

employees to climb up the ladders to the roof of the railcar without the proper safety equipment.

Van Gorder filed this negligence action against Grand Trunk on February 2, 2005, pursuant

to FELA, 45 U.S.C. § 51, et seq. On September 27, 2006, the district court issued its opinion and

order granting summary judgment in favor of Grand Trunk, concluding that no genuine issue of

material fact remained for trial and that Van Gorder had failed to produce evidence from which a

jury could find that Grand Trunk was negligent. Van Gorder timely filed this appeal.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of summary judgment, using the same standard

applied by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc).

Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show 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.
No. 06-2451 Van Gorder v. Grand Trunk Western Railroad Page 3

P. 56(c). We must review all the evidence, facts, and inferences in the light most favorable to the

nonmoving party. Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

In order to defeat a summary judgment motion, the nonmoving party must “show sufficient

evidence to create a genuine issue of material fact.” Prebilich-Holland v. Gaylord Entm’t Co., 297

F.3d 438, 442 (6th Cir. 2002) (citing Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990)).

The nonmoving party must provide more than a scintilla of evidence. Anderson v. Liberty Lobby,

Inc., 447 U.S. 242, 252 (1986). That is, the nonmoving party must present sufficient evidence to

permit a reasonable jury to find in that party’s favor. Id. Entry of summary judgment is appropriate

“against a party who fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); See also Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.

1996). The party bearing the burden of proof must present a jury question as to each element of its

case. Hartsel, 87 F.3d at 799 (citing Celotex, 477 U.S. at 322).

III. ANALYSIS

Van Gorder sued Grand Trunk under FELA, specifically alleging that Grand Trunk

conducted an unreasonable and negligent inspection of a railcar that directly resulted in his injury.

FELA provides in pertinent part:

Every common carrier by railroad while engaging in commerce . . . 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. § 51. The statute contains a negligence standard. Consequently, to survive Grand

Trunk’s motion for summary judgment, Van Gorder needed to present evidence sufficient to raise

a genuine issue of material fact as to every element of his negligence claim. Celotex, 477 U.S. at

322.

In order to present a prima facie case under FELA, Van Gorder must prove that: (1) he was

injured within the scope of his employment; (2) his employment was in furtherance of Grand

Trunk’s interstate transportation business; (3) that Grand Trunk was negligent; and (4) that Grand

Trunk’s negligence played some part in causing the injury for which he seeks compensation under

FELA. Green v. River Terminal Ry. Co., 763 F.2d 805, 808 (6th Cir. 1985) (internal citations

omitted); see also Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 330 (1958).

We will view the evidence in the light most favorable to Van Gorder, the nonmoving party.

It is undisputed that Van Gorder injured his shoulder during the course of his employment, and he

was furthering Grand Trunk’s interstate transportation business in preparing the railcars for loading

and transport. Therefore, Van Gorder has satisfied the first two of the required FELA elements. The

fatal flaw in Van Gorder’s complaint, however, is that he cannot show that Grand Trunk was

negligent.

To succeed on his FELA claim, Van Gorder must “prove the traditional common law

elements of negligence; duty, breach, foreseeability, and causation.” Adams v. CSX Transportation,

Inc., 899 F.2d 536, 539 (6th Cir. 1990) (quoting Robert v. Consolidated Rail Corp., 832 F.2d 3, 6

(1st Cir. 1987)); Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 258 (6th Cir. 2001). Van Gorder

correctly contends that FELA relaxes a plaintiff’s standard of proof regarding causation. Rogers v.

Missouri Pacific RR. Co., 352 U.S. 500, 506 (1957) (ruling for the plaintiff-employee and stating

that, under FELA, the “test of a jury case is whether the proofs justify with reason the conclusion
No. 06-2451 Van Gorder v. Grand Trunk Western Railroad Page 4

1

Perkins was decided under the Jones Act, 46 U.S.C. § 688. The court, however, stated that the Jones Act

simply provides for seamen parallel rights that FELA provides railroad employees. Perkins, 246 F.3d at 598.

that employer negligence played any part, even the slightest, in producing the injury.”). Therefore,

if Grand Trunk were negligent, Van Gorder need only show that its negligence contributed even

slightly to his injury. But, contrary to Van Gorder’s assertions, the relaxed causation standard under

FELA does not affect his obligation to prove that Grand Trunk was in fact negligent. Perkins v.

American Elec. Power Fuel Supply, Inc., 246 F.3d 593, 598-99 (6th Cir. 2001).1 FELA does not

lessen a plaintiff’s burden to prove the elements of negligence.

Under FELA, a railroad has a duty to provide its employees with a reasonably safe

workplace; this does not mean that a railroad has the duty to eliminate all workplace dangers, but

only the “duty of exercising reasonable care to that end.” Baltimore & Ohio S. W. R. Co. v. Carroll, 280 U.S. 491, 496 (1930). Grand Trunk does not dispute that it had a duty to exercise reasonable

care to protect Van Gorder, an employee. Thus, Van Gorder established the duty component of the

negligence standard. Van Gorder cannot, however, show that Grand Trunk breached that duty.

A railroad breaches its duty to its employees when it fails to use ordinary care under the

circumstances or fails to do what a reasonably prudent person would have done under the

circumstances to make the working environment safe. Tiller v. Atlantic C. L. R. Co., 318 U.S. 54,

67 (1943); Aparicio v. Norfolk & W. Ry., 84 F.3d 803, 811 (6th Cir. 1990). That is, a railroad

breaches its duty when it “‘knew, or by the exercise of due care should have known’ that prevalent

standards of conduct were inadequate to protect [the plaintiff] and similarly situated employees.”

Aparicio, 84 F.3d at 811 (quoting Urie v. Thompson, 337 U.S. 163, 178 (1949)). A railroad must

act reasonably and use ordinary care to protect its employees.

Van Gorder specifically alleges that Grand Trunk’s pre-trip inspections were not reasonable

and that by performing only those inspections, Grand Trunk breached its duty of care. Van Gorder

contends that the manner in which the visual inspections were performed was not thorough enough

to reveal the defective bolt, and that the pre-trip inspection was not undertaken with ordinary care

because it did not include closing the clamshell doors, which would have exposed the defect. In

attempting to prove that Grand Trunk’s pre-trip inspections were unreasonable, Van Gorder relies

almost exclusively on the sworn affidavit of his purported expert, Michael Micek (“Micek”). But

Micek did not inspect the door of the railroad car at issue, nor does he state in his affidavit that he

has any particular familiarity with either the type of car or the type of door at issue. He fails to point

to any standard of care to which Grand Trunk failed to conform and he does not explain what kind

of inspection would have been reasonable. Micek’s affidavit simply makes the conclusory statement

that Grand Trunk did not act reasonably because in its pre-trip inspections, it did not discover the

defective bolt.

Van Gorder first claims that Grand Trunk would have discovered the defect if it had viewed

the door from the roof of the railcar. In his affidavit, Micek claims that Grand Trunk employees

could have climbed the ladder on the side of the rail car to its “upper most height” and seen the

defect in the bolt. But Micek did not actually see the car, or climb the ladder. Jacques — who

personally inspected the car — testified at his deposition that he could not see the defect in the bolt

either from above the car or from the ground below. Furthermore, Jacques stated that it would be

dangerous for an employee to climb the ladder to its upper-most heights without the proper safety

equipment. There is no question that Jacques has substantial experience in dealing with the bi-level

auto carrier railcars with clamshell doors, like the one in question. Nothing in the record establishes

that Micek has any such experience.
No. 06-2451 Van Gorder v. Grand Trunk Western Railroad Page 5

Most significant here, however, was Micek’s inability to explain what would have

constituted a proper inspection. Micek provided no specific information to explain why Grand

Trunk’s inspection was not reasonable. He provided no evidence to dispute Grand Trunk’s specific,

first-hand testimony that the defective bolt was not visible from any angle, and that to observe the

defect, Grand Trunk had to take the door apart. Van Gorder cannot raise a genuine issue of fact

regarding the reasonableness of Grand Trunk’s inspection by suggesting that it should have used a

different method to perform the inspection, when the method he advocates would not have revealed

the defect that led to his injury.

Van Gorder next claims that Grand Trunk merely had to close the door to discover the

defect; that closing the doors during the pre-trip inspection would be very easy for Grand Trunk; and

that failure to do so made the pre-trip inspection unreasonable. We need not decide what might be

easy for the railroad, nor need we indulge Grand Trunk’s hypothetical assertions that, in this case,

closing the door during the pre-trip inspection might simply “have provided us with a different

plaintiff.” We must decide only whether Grand Trunk conducted a reasonable inspection and

exercised ordinary care. Van Gorder has not presented evidence and the record does not contain

evidence sufficient to permit a reasonable jury to find that Grand Trunk’s failure to require closing

the door as part of the pre-trip inspection of the car made that inspection unreasonable.

Jacques testified that the pre-trip inspectors would ordinarily recognize a problem with the

door upon opening it. Van Gorder himself testified that he had never encountered a door with a

defect like the one in question, and that if a door were going to be defective, he “would usually know

in the first few inches” of closing it. Van Gorder agreed that the door in question was unusual, and

he presented no evidence that Grand Trunk knew or had reason to know of the particular defect in

the door or that such a defect would cause the injury Van Gorder sustained. In short, Van Gorder

presented no evidence from which a jury could find that Grand Trunk did not exercise ordinary care

in performing the pre-trip inspection of the railroad cars, or that its method of pre-trip inspection

of the cars was unreasonable.

Under FELA, the “test of a jury case is simply whether the proofs justify with reason the

conclusion that employer negligence played any part . . . in producing the injury.” Gallick v.

Baltimore & Ohio R.R. Co., 372 U.S. 108, 116 (1963); Rogers, 352 U.S. at 506. If the record

contains evidence from which the court could draw the conclusion that the employer’s negligence

played any part in the plaintiff’s injury then it must send the case to the jury, even if the evidence

would also allow the jury to find for the employer. Id. at 116-17. But a plaintiff cannot benefit from

FELA’s relaxed causation standard unless he can prove that the employer was negligent in the first

place, and this Van Gorder has wholly failed to do.

The record in this case does not contain evidence sufficient to preserve a genuine issue of

fact material to an element of Van Gorder’s claim, namely, that Grand Trunk was negligent in its

inspection of the car door. In the absence of that evidence, summary judgment for Grand Trunk was

appropriate. Celotex, 477 U.S. at 322; see also Hartsel, 87 F.3d at 799.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.