1 14-3074-cv Coale v. Metro-North R.R. UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (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 Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 13 th day of July, two thousand fifteen. PRESENT: RALPH K. WINTER, PIERRE N. LEVAL, REENA RAGGI, Circuit Judges.

---------------------------- ---------------------------- -------------- WILLIAM COALE, Plaintiff-Appellant , v. No. 14-3074-cv METRO-NORTH COMMUTER RAILROAD COMPANY, Defendant-Appellee, NEW HAVEN PARKING AUTHORITY, Third-Party-Defendant

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-------------------------------------- -------------------------------- APPEARING FOR APPELLANT: GEORGE J. CAHILL, JR. (Scott E. Perry, on the brief ), Cahill & Perry, P.C., New Haven, Connecticut.

* The Clerk of Court is directed to ame nd the official caption as shown above.2 APPEARING FOR APPELLEE: BECK S. FINEMAN, Ryan Ryan Deluca LLP, Stamford, Connecticut. Appeal from a judgment of the United States District Court for the District of Connecticut (Charles S. Haight, Jr., Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on August 5, 2014, is VACATED and the case is REMANDED for further proceedings consistent with this order. Plaintiff William Coale, a former assist ant conductor for Metro-North Commuter Railroad Co. (“Metro-North”), appeals from an award of summary judgment in favor of defendant Metro-North on Coale’s Federal Em ployers’ Liability Act (“FELA”) claim, see 45 U.S.C. § 51 et seq., for ne gligent failure to provide a safe work environment, causing him to suffer a serious back in jury. We review an award of summary judgment de novo, and we will affirm only if the record, viewed in th e light most favorable to the nonmoving party, reveals no genuine issue of material fact . See Fed. R. Civ. P. 56(a); Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 842–43 ( 2d Cir. 2013). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision.
1. FELA Claim FELA places a duty on railroa d employers to provide thei r employees with a safe workplace, see 45 U.S.C. § 51; Tufariello v. Long Island R.R., 458 F.3d 80, 87 (2d Cir. 2006), which “includes the duty to maintain and inspect work areas,” Sinclair v. Long Island R.R., 985 F.2d 74, 76 (2 d Cir. 1993). A railroad breach es its FELA duty “if it knew3 or should have known of a potential hazard in the workplace, and ye t failed to exercise reasonable care to inform and protect its employees.” Willia ms v. Long Island R.R., 196 F.3d 402, 406 (2d Cir. 1999) (internal quotation marks om itted). Courts apply a more relaxed standard of both negligence and causati on to FELA negligence claims than to those arising under common law. See Rogers v. Mi ssouri Pac. R.R., 352 U.S. 500, 506 (1957); Williams v. Long Island R.R., 1 96 F.3d at 406. This does not make FELA a strict liability statute, see Williams v. Long Island R.R., 196 F.3d at 406; claimants must offer some evidence to support a finding of negligence, O’ Hara v. Long Island R.R., 665 F.2d 8, 9 (2d Cir. 1981). But it does mean that juries have more latitude to infer negligence than at common law, such that the ques tion can rarely be taken from them and decided by the court as a matter of law. See Williams v. Long Island R.R., 196 F.3d at 407; Ulfik v. Metro-North Commuter R.R., 77 F.3d 54, 58 (2d Cir. 1996). Coale argues that the district court erred in concluding, as a matter of law, that Metro-North could not be held liable under FELA for his workplace injuries because it lacked actual or constructive notice of the precipitating hazardous condition, namely, an oily, shiny substance on the floor of Metro-North’s New Ha ven Employee Register Room. As the district court correctly recognized, u nder our precedent, “the essential element of reasonable foreseeability in F ELA actions . . . requires proof of actual or constructive notice to the employer of the defective condition that caused the injury.” Sinclair v. Long Island R.R., 985 F.2d at 77 (internal citation omitted). Here, Coale did not demonstrate notice through specific evidence that a Metro-North employee or agent created the hazard.4 Nor did he adduce eviden ce that the hazard was so obvious and persistent in nature that Metro-North can be charged with constructive notice under its dut y to inspect. See, e.g., id. (holding that jury could reasonably infe r from proffered photographs that hazardous condition existed long enough to impart constructive or actual notice to railroad). Nevertheless, we conclude that summary judgment should not have been awarded to Metro-North because we cannot conclude, as a matter of law, that his negligence claim necessarily fails on a theory of res ipsa loquitur. To pursue that theory, a plaintiff must show that (1) the injurious event “was of a kind which ordinarily does not occur in the absence of someone’s negligen ce,” (2) “it was caused by an agency or instrumentality within the exclusive control of the defendant ,” and (3) “it was not due to any voluntary action or contribution on the part of the plaint iff.” Potthast v. Metr o-North R.R., 400 F.3d 143, 149 (2d Cir. 2005) (internal quotation ma rks omitted). The district court concluded that Coale could not satisfy eith er the first or second elements. As to the first, it observed that “[s]lip and fall cases often occur in the absence of neglig ence.” Coale v. Metro-North R.R., 34 F. Supp. 3d 206, 219 (D. Conn. 2014). While that may be true in the abstract, it cannot be said, as a matter of law, about the slip and fall here at issue. Coale slipped because an oily substance had pooled on the Register Room floo r. There is no apparent explanation for the presence of that subs tance except someone’s negligence. Indeed, Metro-North has proffered no no n-negligent explanation. As to the second element, the district c ourt noted “the possibility that someone other than Metro-North or [its contr act agent] NHPA could have caus ed the spill, . . . such that5 this Court cannot conclude th at Metro-North or NHPA had exclusive control of the substance upon which Coale slip ped.” Id. But the “possib ility” seems remote given that the Register Room was a restricted area, acc essible only through a keypad-secured door. While Metro-North offered evid ence that a technician ente red the room approximately once a year to service a vendin g machine, and that Amtrak employees occasionally used a secured bathroom, it made no showing that a ny such persons, for wh ose actions it would not have been responsible, had been in the Register Room on the day of Coale’s injury. By contrast, Coale offered evidence that the Register Room had been used as usual by Metro-North employees throughout the day of hi s injury. On this record, the res ipsa loquitur question should not ha ve been taken from the jury. See Potthast v. Metro-North R.R., 400 F.3d at 150–51 & n. 9 (noting that “‘requirement’ of exclusive control has not been read so strictly in our cases, by the Restatement, and by many state courts,” as to foreclose res ipsa loquitur liability whenev er third parties had access to injuring instrumentality, but rather that case properl y proceeds to jury “so long as adequate evidence was presented [to] allo w[] a jury to exclud e the actions of such third parties as significant causes of the injury ”); id. at 152 (cautioning th at “in making determinations regarding the plaintiff’s eligib ility for a res ipsa loquitur charge, the court should be especially careful not to take to itself the role a nd responsibility of the jury,” and further observing that “[i]n persuadi ng the court that a plainti ff merits a res ipsa loquitur instruction, the plaintiff cannot be required to meet as high an evidentiary hurdle as would ultimately be needed to convin ce a jury”); see also Dermato ssian v. N.Y.C. Transit Auth.,6 67 N.Y.2d 219, 227, 501 N. Y.S.2d 784, 789 (1986) (“The exclusive control requirement, as generally understood, is that the evidence must afford a ra tional basis for concluding that the cause of the accident was probably such th at the defendant woul d be responsible for any negligence connected with it. The purpose is simply to eliminate within reason all explanations for the in jury other than the defendant’s negligence. The requirement does not mean that the possibility of other causes mu st be altogether eliminated, but only that their likelihood must be so reduced that th e greater probability lies at defendant’s door.” (emphasis added) (inter nal quotation marks and citations omitted)). We therefore vacate the awar d of summary judgment in favor of Metro-North, and remand the case for further proceedings consis tent with this order, including trial.
2. Denial of Spoliation Sanction Coale argues that the district court a bused its discretion in failing to sanction Metro-North for spoliation of evidence, speci fically, the oily subs tance on which he slipped. See West v. Goodyear Tire & Rubber Co., 167 F.3d 776 , 779 (2d Cir. 1999) (reviewing district court’s decision on spolia tion for abuse of discretion). A party seeking an adverse inference instruc tion based on the destruction of evidence must establish “(1) that the party having control over the evid ence had an obligation to preserve it at the time it was destroyed; (2) that th e records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 20 02) (internal quotation7 marks omitted)). In denyin g Coale’s motion, the distri ct court concluded—moving directly to the third factor—that the destroyed evidence was not relevant to Coale’s claim. See Coale v. Metro-North R.R., 34 F. Supp. 3d at 220. We are not persuaded. Insofar as identifying the substance may have shed light on the party who spilled it, the substance provided evidence relevant to an element of Coale’s negl igence claim—i.e., whether Metro-North had “actual or constructive notice . . . of the defectiv e condition that caused the injury.” Sinclair v. Long Island R.R., 985 F.2d at 77 (internal citation omitted); see Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998 ) (observing that party’s destruction of evidence “relevant to proof of an issue at tria l can support an inference that the evidence would have been unfavorable to the party responsible for its destruction”). Nevertheless, because the distri ct court did not evaluate the remaining factors in reaching its decision, we vacate the spoliation deci sion and remand for the district court to determine, in its discretion, whether a spolia tion sanction is warranted in this case.
3. Conclusion For the reasons stated above, we VACATE the judgment of the district court and REMAND the case for further proceedi ngs consistent with this order.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court