* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 26 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
MICHAEL R. SCHAEFER,

Plaintiff-Appellant,

v. UNION PACIFIC RAILROAD COMPANY, a Utah corporation,

Defendant-Appellee. No. 98-8066 (D.C. No. 97-CV-207-J) (D. Wyo.)

ORDER AND JUDGMENT *

Before TACHA , BARRETT , and BRORBY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Plaintiff Michael R. Schaefer appeals from an orderof the district court granting defendant ’s motion for summary judgment. We affirm. Mr. Schaefer was employed by defendantfor twenty-five years as a signalman. In 1995, he began experiencing shoulderpain. He was diagnosed with glenohumeral arthritis secondary to hypoplasti c glenoids, a congenital abnormality which prevented him from continuing to work. He applied for and received a disability award from the Railroad Retir ement Board. Mr. Schaefer then filed this action pursuit to the Federal Employer’s Liability Act, 45 U.S.C. §§ 51-60 (FELA), alleging negligence by defendant because it had provided unsafe working conditions. Mr. Schaefer alleged defendantshould have provided proper, suitable, and suffici ent tools, machinery and equipment, and adequate manpower. He also contended defendanthad not provided proper supervision and instruction or reas onably safe procedures; had failed to warn him of potentially dangerous conditi ons; and was otherwise negligent, careless and inattentive to safety issue s. The district court granted defendant ’s motion for summary judgment holding that Mr. Schaefer had presented no evidence that defendantcould have foreseen the harm that resulted to him. The court concluded that Mr. Schaefer had not met his obligation to set forth specific fa cts showing that defendant should have known that he was at risk for developin g the injury he experienced.1 Every common carrier by railroad . . . shall be liable in

damages to any person suffering injury while he is employed by such carrier . . . for such injury . . . resulting in wh ole or in part from the negligence of any of the officers, agents, or emplo yees of such carrier, or by reason of any defect or insufficienc y, due to its negligence, in its cars, engines, appliances, machi nery, . . . or other (continued...) -3- On appeal, Mr. Schaefer argues that because he had foreseen the dangers of his job and had warned his supervisors about the m, his injury was foreseeable. Mr. Schaefer also asserts defendant should be liabl e because FELA was enacted to liberally permit recovery for injured workers thus requiring that he present only slight evidence of potential harm, a standard he me t. “We review the entry of summary judgment de novo, d rawing all reasonable inferences in favor of the nonmovants.” Hulsey v. Kmart, Inc. , 43 F.3d 555, 557 (10th Cir. 1994). The moving party must show there is no genuine issue as to any material fact and it is entitled to judgment as a matter of law. See id. The nonmovant must establish, at a minimum, an in ference that each element essential to the case is present. See id. FELA was enacted to supplant the common-law duty of the master to his servant with a duty imposing liability for any inju ry or death which occurs at work and which is due in any manner to the employer’s negligence. See Summers v. Missouri Pac. R.R. Sys. , 132 F.3d 599, 607 (10th Cir. 19 97); see also 45 U.S.C. § 51. 1 Therefore, in FELA cases, the issue before the co urt is “‘narrowly1 (...continued)

equipment. 45 U.S.C. § 51
-4- limited to the single inquiry [of] whether . . . th e conclusion may be drawn that negligence of the employer played any part at all i n the injury or death.’” Summers , 132 F.3d at 606 (quoting Rogers v. Missouri Pacific R.R. , 352 U.S. 500, 506-08 (1957)). Thus, the FELA plaintiff mustprove “the common law elements of negligence, including duty, breach, for eseeability, and causation.” Williams v. National R.R. Passenger Corp. , 161 F.3d 1059, 1062 (7th Cir. 1998); see also Gallick v. Baltimore & O. R.R. , 372 U.S. 108, 117 (1963) (showing that injury was reasonably foreseeable is “essential ing redient” for establishing negligence under FELA). The “employer is not liable if it has no reasonabl e way of knowing that a potential hazard exists.” Williams , 161 F.3d at 1062 (citing cases). Mr. Schaefer contends he has met this requirement b ecause he had informed his supervisors that his job had the potential for injury. However, he has not proved that defendant knew or should have known of “conditions which created a likelihood that petitioner, in performing the duties required of him, would suffer just such an injury as he did .” Rogers , 352 U.S. at 503 (footnote omitted) (emphasis added); see also Ellis v. Union Pac. R.R. , 329 U.S. 649, 653-5-

(1947) (FELA liability will not be imposed based so lely on fact that injury occurred as FELA “does not make the employee the in surer of” its employees’ safety at work); Kuberski v. New York Cent. R.R. , 359 F.2d 90, 93 (2d Cir. 1966) (fact that injury occurred cannot alone provide pro of of negligence on part of defendant) . Mr. Schaefer did notify his supervisor that he fear ed he could be injured because he did not have the proper equipment and he needed more people to assist him. He complained that the tools were unsafe and that the materials were too heavy to carry. These complaints relate to unsafe working conditions. He did not notify his employer that any of his duties were cau sing him pain in his shoulders. He has failed to show that defendant should have fo reseen that he would have a disabling shoulder condition caused, in part, by hi s routine duties of heavy lifting and extreme stretching.

The judgment of the United States District Court fo r the District of Wyoming is AFFIRMED.-6- Entered for the Court

James E. Barrett Senior Circuit Judge