United States Court of Appeals

For the Eighth Circuit

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No. 16-3687

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Shawn Royal; Regina Royal

lllllllllllllllllllll Plaintiffs - Appellants

v.

Missouri & Northern Arkansas Railroad Company, Inc.; RailAmerica, Inc.;

Genesee & Wyoming, Inc.

lllllllllllllllllllll Defendants - Appellees

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Appeal from United States District Court 

for the Western District of Arkansas - Texarkana

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 Submitted: April 6, 2017

 Filed: May 22, 2017

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Before GRUENDER, MURPHY, and KELLY, Circuit Judges.

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GRUENDER, Circuit Judge.

Shawn Royal, a North American Railway Services (“NARS”) employee, and

his wife, Regina Royal, sued Missouri & Northern Arkansas Railroad Company

(“MNA”) for injuries he sustained while working on MNA’s railroad tracks. They

sought relief pursuant to the Federal Employers’ Liability Act (“FELA”) and under
Arkansas negligence law. The district court granted MNA’s motion for summary 1

judgment, and the Royals appealed. For the reasons discussed below, we affirm.

In February 2012, NARS entered into a Master Service Agreement with

RailAmerica Transportation Corporation (“RailAmerica”) to provide track-related

services to RailAmerica’s affiliated and subsidiary railroads. At the time, MNA was

a wholly owned subsidiary of RailAmerica. The Agreement stipulated that NARS “is

not an agent, representative, or employee of[RailAmerica] or any ofits Railroads, but

rather is an independent contractor.” The Agreement also stated that NARS “shall

be responsible for all actions of its employees, subcontractors, agents and

representatives” while working at the railroad sites and that RailAmerica and its

subsidiaries had the right to inspect and test NARS’s work and direct NARS to make

corrections as needed.

NARS employed Shawn Royal to operate a ballast regulator and sent him to

perform maintenance work at several different railroad locations. NARS provided

Royal with safety training and equipment instruction, furnished his personal

protective and service equipment, and was responsible for all of his compensation. 

Pursuant to his employment with NARS, Royal did maintenance work on MNA’s

railroad tracks, which involved operating a machine that picked up and spread ballast,

the stone or material placed around railroad tracks that provides structural support,

drainage, and erosion protection. While working as a NARS employee on MNA’s

railroad tracks, Royal wasrequired to abide by RailAmerica-MNA safety guidelines. 

For example, the safety guidelines directed NARS employees to refrain from drug or

alcohol use while on the job. Furthermore, for certain forms of railroad maintenance

work, the safety guidelines mandated job briefings with MNA employees or for an

MNA employee to be present. An MNA employee would also coordinate locations

The Honorable Susan O. Hickey, United States DistrictJudge for the Western 1

District of Arkansas.

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and schedules for work assignments. Nonetheless, Royal’s chain of command

consisted only of NARS employees, and NARS maintained sole authority to

discipline or fire Royal. While Royal testified that MNA often told him to “hurry

up,” he also stated that MNA did not rush him on the day of the incident and never

directed or controlled how he was to perform his work.

On September 25, 2012, Royal was operating his ballast regulator on MNA’s

railroad tracks when his machine picked up and struck a piece of “rip-rap,” a large

rock mixed in with the smaller ballast. In certain areas around railroad tracks, rip-rap

is commonly placed for structural integrity. However, rip-rap can also be dangerous

because if it is pulled onto the railroad tracks, a ballast regulator may run over it,

abruptly stopping the machine and injuring the driver. Royal often encountered riprap while working on his ballast regulator; was trained to spot it; and had struck a

piece three weeks prior, bringing his machine to a sudden stop. This time, Royal

struck the rip-rap and was thrown forward, causing back injuries.

The Royals sued MNA claiming that MNA supervised and controlled Shawn

Royal’s work, and assuch, he was MNA’s employee and entitled to hold MNA liable

under FELA. Additionally, the Royals alleged that MNA was liable for negligently

placing rip-rap in the ballast section near its railroad tracks. The district court granted

MNA’s motion for summary judgment, and the Royals now appeal.

We review a district court’s grant of summary judgment de novo, viewing the

facts in the light most favorable to the non-moving party and giving the non-moving

party the benefit of reasonable inferences evident from the record. Francisco v.

Burlington N. R.R. Co., 204 F.3d 787, 789 (8th Cir. 2000). Summary judgment is

proper “if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

Royals challenge the district court’s grant of summary judgment on both the FELA

and Arkansas negligence claims.

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FELA allows employees of interstate railroads to recover against railroads for

injuries sustained in the course of employment. Cowden v. BNSF Ry. Co., 690 F.3d

884, 889-90 (8th Cir. 2012). FELA states that “[e]very common carrier by railroad

while engaging in commerce between any of the several States . . . shall be liable in

damages to any person suffering injury while he is employed by such carrier in such

commerce.” 45 U.S.C. § 51. Thus, in order to maintain a FELA action against MNA,

the Royals must demonstrate that Royal was employed by MNA.

While the Royals concede that Royal was formally an employee of NARS, not

MNA, they are correct that our inquiry does not end there. In Kelley v. Southern

Pacific Co., the Supreme Court noted that for FELA purposes, “employment”

describes a master-servant relationship “determined by reference to common-law

principles.” 419 U.S. 318, 323 (1974). Under the common law, a plaintiff can

establish employment with a railroad carrier even while nominally employed by

another if he can show he is (1) a borrowed servant, (2) a dual servant, or (3) a

subservant. Id. at 324. Determining whether a plaintiff constitutes a borrowed

servant, dual servant, or subservant turns on whether the railroad controlled or had

the right to control the plaintiff’s performance of his job. Vanskike v. ACF Indus.,

Inc., 665 F.2d 188, 198-99 (8th Cir. 1981) (citing Kelley, 419 U.S. at 322-26). 

Royal does not qualify as MNA’s employee because the evidence shows that

NARS was the sole entity that had the right to control his work. Royal’s chain of

command consisted only of NARS employees. NARS hired him, trained him, and

sent him to do maintenance work on railroads. NARS was responsible for all of

Royal’s compensation and maintained sole authority to discipline or fire him. 

Furthermore, NARS provided all safety training and equipment instruction to Royal

and furnished all his personal protective and service equipment. Royal responds that

MNA nonetheless controlled or had the right to control his work because MNA

employees often told him to “hurry up,” he was required to abide by RailAmericaMNA safety guidelines, MNA employees inspected his work, and an onsite MNA

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employee coordinated locations and schedules for work assignments. These facts,

however, are immaterial because they would not allow a reasonable jury to find that

MNA controlled or had the right to control Royal’s work.

First, Royal’s testimony that MNA employees told him to hurry up is not a

materialfact when examined against the backdrop of his entire testimony. Elsewhere,

Royal testified that nobody rushed himon the day of the incident and that MNA never

directed him on how to operate his ballast regulator. Thus, Royal’s lone reference to

being hurried is not enough to allow a reasonable jury to find that MNA controlled

or had the right to control Royal’s work. See Brunsting v. Lutsen Mountains Corp., 

601 F.3d 813, 820 (8th Cir. 2010) (“A mere ‘scintilla of evidence’ is insufficient to

defeat summary judgment.” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986))).

Second, the mere existence ofsafety guidelines does not suggest that MNA had

the right to control Royal’s work. The obligation to conform to safety requirements

was a “mutually agreed upon practice[] that merely insured worker and premises

safety.” Campbell v. BNSF Ry. Co., 600 F.3d 667, 669, 674 (6th Cir. 2010) (holding

that adherence to a railroad’s safety protocols is not enough to show a contractor’s

employees were railroad employees). The agreement to abide by certain safety

regulationsis a reasonable request necessary to safeguard against dangerous work and

does not constitute control or supervision. See id. at 674. 

Finally, MNA’s inspection of NARS’s and Royal’s work and its coordination

of locations and schedules for work assignments are likewise insufficient to indicate

that MNA had the right to control Royal’s work. “[M]inimum cooperation necessary

to carry out a coordinated undertaking . . . cannot amount to control or supervision,”

Shenker v. Baltimore & Ohio R.R. Co., 374 U.S. 1, 6 (1963) (citation omitted),

because evidence of contacts between a railroad’s employees and a contractor’s

employees “may indicate, not direction or control, but rather the passing of

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information and the accommodation that is obviously required in a large and

necessarily coordinated operation,” Kelley, 419 U.S. at 329. As a result, “[t]he mere

fact that a railroad reserves the right to assure performance in accordance with the

specifications of the contract does not render [the] contractor a railroad employee.” 

Morris v. Gulf Coast Rail Grp., Inc., 829 F. Supp. 2d 418, 424 (E.D. La. 2010).

Accordingly, we conclude that no reasonable jury could find that MNA controlled or

had the right to control Royal’s work and therefore affirm the district court’s grant of

summary judgment on the Royals’ FELA claim.

The Royals next assert that the district court erred in dismissing their claimthat

MNA negligently placed rip-rap in the ballast section near its railroad tracks. We

apply Arkansas law and “are bound by decisions of the Arkansas Supreme Court.” 

See Chew v. Am. Greetings Corp., 754 F.3d 632, 635 (8th Cir. 2014) (quotation

omitted). In order to establish a prima facie case of negligence under Arkansas law,

“a plaintiff must show that damages were sustained, that the defendant breached the

standard of care, and that the defendant’s actions were the proximate cause of the

damages.” Union Pac. R.R. Co. v. Sharp, 952 S.W.2d 658, 661 (Ark. 1997). “The

issue of whether a duty exists is always a question of law, not to be decided by a trier

of fact. If no duty of care is owed, summary judgment is appropriate.” Lacy v. Flake

& Kelley Mgmt., Inc., 235 S.W.3d 894, 896 (Ark. 2006) (citations omitted).

“[A]n employer of an independent contractor owes a common law duty to the

contractor’s employees to exercise ordinary care for their safety and to warn against

any hidden dangers or unusually hazardous conditions.” Jackson v. Petit Jean Elec.

Co-op., 606 S.W.2d 66, 68 (Ark. 1980). This duty, however, “does not contemplate

a duty to warn of obvious dangers which are an integral part of the work the

contractor was hired to perform.” D.B. Griffin Warehouse, Inc. v. Sanders, 76

S.W.3d 254, 262 (Ark. 2002). The Royals do not disagree with these statements of

law or even MNA’s contention that rip-rap is an obvious danger in this line of work. 

The Royals do claim, however, that the dangers posed by rip-rap in this case are not

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obvious because MNA negligently placed rip-rap in a section of the tracks where it

did not belong. We are not persuaded by their argument.

In Chew v. American Greetings Corp., we applied an Arkansas Supreme Court

case, D.B. Griffin Warehouse, Inc. v. Sanders, 76 S.W.3d 254 (Ark. 2002), and found

that an employer of independent-contractor electrical workers owed no duty to warn

of the danger in approaching a transformer with improper equipment because the

work necessarily implicated these obvious hazards. 754 F.3d at 639. The plaintiffs

argued that the defendant failed to warn them of the “unique nature of its

transformers, [which] caused [the plaintiff’s] incorrect assumptions about the

[transformer’s voltage].” Id. at 635. We held that “though some details about [the]

transformers may have been hidden, . . . the ultimate hazard the transformer posed

was obvious, and the contractors retained the ultimate responsibility to assess these

risks.” Id. at 639 (“[The] duty to warn of latent or hidden dangers. . . . does not

encompass an obligation to warn of the latent characteristics of an obvious hazard

that arises because of the nature of the contractor’s work.”).

This logic applies here with equal force. The dangers posed by rip-rap were

obvious. Royal testified that he was trained to operate his machine in an area with

rip-rap, that he had noticed there was rip-rap along the railroad in the area where he

was operating, that it was a common occurrence to pull rip-rap from outside the rails

to inside the rails, and that he had previously struck a piece of rip-rap on this same

MNA railroad line. Thus, “[t]hough some details about [the rip-rap] may have been

hidden, . . . the ultimate hazard [the rip-rap] posed was obvious, and [Royal] retained

the ultimate responsibility to assess these risks.” See id. at 639. We determine that

MNA did not owe Royal a duty to warn of the well-known dangers of rip-rap and that

the Royals’ negligence claim therefore fails as a matter of law. 

Accordingly, we affirm the district court’s grant of summary judgment. 

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