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21-1934-cv

Batista v. Metro. Transportation Auth.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order 

filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 5th day of July, two thousand twenty-two.

PRESENT: JON O. NEWMAN,

JOSÉ A. CABRANES,

JOSEPH F. BIANCO,

Circuit Judges.

_____________________________________

JORGE BATISTA,

Plaintiff-Appellant,

v. 21-1934-cv

METROPOLITAN TRANSPORTATION 

AUTHORITY,

Defendant-Appellee.

_____________________________________

FOR PLAINTIFF-APPELLANT: PHILIP J. DINHOFER, Rockville, NY.

FOR DEFENDANT-APPELLEE: HELENE R. HECHTKOPF, (Evan F. Jaffe,

on the brief), Hoguet Newman Regal & 

Kenney, LLP, New York, NY. 

Appeal from an order and judgment entered on July 9, 2021, by the United States District 

Court for the Southern District of New York (Lewis J. Liman, Judge).
 

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UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the July 9, 2021 order and judgment of the District Court 

be and hereby are AFFIRMED.

Plaintiff Jorge Batista filed suit against Defendant Metropolitan Transportation Authority 

(the “MTA”) alleging liability under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 

et seq. Batista, an MTA police officer, alleges that on March 4, 2017, while he was patrolling the 

Brewster train station, he and his partner encountered an individual making graffiti on a train 

overpass. In their attempts to apprehend that individual and during the ensuing physical 

confrontation caused by that individual’s resistance, Batista (along with his partner and the individual 

they sought to detain) fell through a set of double doors at the station. Batista fell down a threestory staircase behind the doors that led from the overpass to the street below, as a result of which 

he sustained serious injuries. He filed the present FELA suit alleging various theories of negligence 

against the MTA. Both parties moved for summary judgment under Rule 56 of the Federal Rules of 

Civil Procedure, and the District Court granted the MTA’s motion while denying Batista’s motion. 

Batista v. Metro. Transportation Auth., No. 20-CV-1254 (LJL), 2021 WL 2894351, at *11 (S.D.N.Y. July 

9, 2021). Batista now appeals. We assume the parties’ familiarity with the underlying facts, the 

procedural history of the case, and the issues on appeal. 

I. LEGAL FRAMEWORK

We review a grant of summary judgment de novo, construing the facts in the light most 

favorable to the non-moving party. Syverson v. Consol. Rail Corp., 19 F.3d 824, 825 (2d Cir. 1994). 

For the non-moving party to succeed, “there must be evidence on which the jury could reasonably

find” in the non-moving party’s favor. Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) 

(internal quotation marks omitted). “To defeat summary judgment, therefore, nonmoving parties 

must do more than simply show that there is some metaphysical doubt as to the material facts, and 

they may not rely on conclusory allegations or unsubstantiated speculation.” Id. (cleaned up). 

FELA provides that any railroad engaging in interstate commerce “shall be liable in damages 

to any person suffering injury while he is employed by such carrier in such commerce . . . for such 

injury . . . resulting in whole or in part from the negligence of any of the officers, agents, or 

employees of such carrier.” 45 U.S.C. § 51. A plaintiff raising a FELA claim must prove the 

traditional common-law elements of negligence — duty, breach, foreseeability, and causation —

though “the plaintiff’s burden in making a showing of causation and negligence is lighter under 

FELA than it would be at common law.” Tufariello v. Long Island R. Co., 458 F.3d 80, 87 (2d Cir. 

2006). “The test is whether the proofs justify with reason the conclusion that employer negligence 

played any part, even the slightest, in producing the injury.” Ulfik v. Metro-N. Commuter R.R., 77 F.3d 

54, 58 (2d Cir. 1996). Still, “[w]hile there is a considerably more relaxed standard of proof for 

determining negligence in FELA cases and a strong federal policy in favor of letting juries decide 
 

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these cases, FELA does not make an employer strictly liable for workplace injuries and, therefore, 

requires that claimants must at least offer some evidence that would support a finding of 

negligence.” Sinclair v. Long Island R.R., 985 F.2d 74, 76-77 (2d Cir. 1993) (cleaned up). 

Under FELA, “[t]he touchstone of th[e] negligence inquiry is the issue of foreseeability —

whether or not [the defendant] knew or should have known of the potential hazard.” Ulfik, 77 F.3d 

at 58. To succeed on his FELA claim, Batista must show proof “of actual or constructive notice to 

the employer of the defective condition that caused the injury.” Sinclair, 985 F.2d at 77. 

II. DISCUSSION

We agree with the District Court’s conclusion that there is no evidence to support a 

conclusion that the MTA had actual notice of any potential hazard. See Batista, 2021 WL 2894351, at 

*5-7. We reject Batista’s contention that the deposition testimony of Wesley Kennen — an 

employee of Metro-North Commuter Railroad (“Metro-North”) who periodically inspected the 

Brewster station prior to the March 4, 2017 incident — demonstrates actual knowledge. Batista puts 

great weight on a single sentence in Kennen’s testimony where, when he was asked what would 

happen if somebody opened the doors after having come up the staircase and a second person was 

attempting to come down the stairs at the same time, he testified “[h]opefully [the second person] 

wait[s] for [the first person].” App’x 340. We agree with the District Court’s conclusion that no 

reasonable jury could conclude on the basis of this testimony that the MTA had actual notice of any 

potential hazard caused by the configuration of the doors and stairs at the Brewster station.

We further agree with the District Court’s conclusion that, on the evidence presented, no 

reasonable jury could conclude that the MTA had constructive notice of a potential hazard caused 

by the configuration of the doors, landing, and stairs. See Batista, 2021 WL 2894351, at *7-9. In 

arguing otherwise, Batista relies heavily on a line of New York cases holding that it is “hazardous 

and unsafe to have a door swing outward and over stairs” and that such a configuration may put a 

defendant on constructive notice of the hazard. See Burton v. State, 456 N.Y.S.2d 126, 127-28 (3d 

Dep’t 1982); see also Acton v. 1906 Rest. Corp., 47 N.Y.S.3d 788, 791 (3d Dep’t 2017) (reversing 

summary judgment in the defendants’ favor where “a door opened over descending stairs”); Griffin v. 

Sadauskas, 787 N.Y.S.2d 721, 721-22 (3d Dep’t 2005) (noting that “it is a matter of simple logic 

whether a door swinging over steps may create a hazardous and unsafe condition” (cleaned up)); 

Hanley v. Affronti, 718 N.Y.S.2d 753, 754 (4th Dep’t 2000) (reversing summary judgment in the 

defendants’ favor because whether or not defendants had “constructive notice of [an] allegedly 

dangerous condition” created by an unlatched door opening in towards a staircase was a triable issue 

of fact). But here, the door did not open directly above a staircase; instead, the door opened over a

landing which was approximately four or five feet long. See below Figures 1 & 2 (reproduced from 
 

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App’x 418 and 428).1 While it is true that Griffin also involved a landing, the door to that landing, 

when fully opened, overlapped the top steps of cellar stairs on which the plaintiff fell, 787 N.Y.S.2d 

at 722, unlike the approximately four- or five-foot-long one in this case. 

Moreover, apart from the physical configuration of the doors, landing, and stairs, Batista is 

unable to point to any evidence indicating that the MTA had constructive notice of a potential 

hazard. Thus, while we have stated that in FELA cases, “the right of the jury to pass on factual 

issues must be liberally construed,” Williams v. Long Island R.R. Co., 196 F.3d 402, 407 (2d Cir. 1999) 

(internal quotation marks omitted), Batista has failed to offer “at least . . . some evidence that would 

support a finding of negligence,” see Sinclair, 985 F.2d at 77 (internal quotation marks omitted). 

Finally, we also agree with the District Court’s conclusion that there is no merit in Batista’s 

argument that the MTA breached its “non-delegable” duty to provide a safe workplace by 

outsourcing the inspection of the Brewster station to Metro-North employees. See Batista, 2021 WL 

2894351, at *9. While our FELA cases have discussed an employer’s “non-delegable duty to inspect 

workplace and to take reasonable precautions to protect its employees from possible harm,” Sinclair, 

985 F.2d at 78 (citing Cazad v. Chesapeake & Ohio Ry., 622 F.2d 72, 75 (4th Cir. 1980)), we have never 

read this “non-delegable” duty to mean that an employer must itself inspect the workplace; instead, 

this restriction means “that a defendant cannot disclaim responsibility by contracting out nondelegable duties.” Potthast v. Metro-N. R.R. Co., 400 F.3d 143, 154 (2d Cir. 2005) (emphasis added).

III. CONCLUSION

We have considered all of Batista’s remaining arguments and find them to be without merit. 

For the foregoing reasons, therefore, we AFFIRM the July 9, 2021 order and judgment of the 

District Court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

1 Nowhere in the record is there a definitive measurement of the length of the full landing, or, 

if the door is open, how much further the landing extends beyond the open door. Based on 

photographs in the record, the District Court concluded that “the landing appears to be 

considerably deeper than four feet, perhaps five feet” and that the parties estimate that the length of 

the open door is “between 30 and 36 inches.” Batista, 2021 WL 2894351, at *8; see also Figures 1 & 

2. 
 

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Figure 1 (reproduced from App’x 418)
 

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Figure 2 (reproduced from App’x 428)