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File Name: 15a0162n.06

Case No. 14-1836

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ANTHONY DURSO,

Plaintiff-Appellant,

v.

GRAND TRUNK WESTERN RAILROAD 

COMPANY,

Defendant-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF MICHIGAN

O P I N I O N

BEFORE: GIBBONS, SUTTON, and McKEAGUE, Circuit Judges.

McKEAGUE, Circuit Judge. Anthony Durso, a carman at Grand Trunk Western 

Railroad Company, injured his shoulder while positioning himself under a railcar to make a 

brake repair. He sued Grand Trunk for negligence under the Federal Employers’ Liability Act, 

45 U.S.C. § 51 et seq., seeking damages for his injury. The district court granted summary 

judgment in favor of Grand Trunk. We affirm.

Durso, a thirty-six-year employee of Grand Trunk, worked most of his career in the 

Pontiac Yard where he inspected, repaired, and maintained railcars. On the day of the injury, 

Durso was working with another carman, Patrick Mardney. Around noon, Mardney told Durso 

that a brake adjustment on a tank railcar was needed to adjust a long piston to comply with 
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Federal Railroad Administration regulations. If the piston is too long, the brakes cannot 

sufficiently stop the car. Durso offered to fix it. He estimated that he had performed this repair 

about 30 times before without injury.

To perform this repair, Durso explained, he must position himself on his back underneath 

the car and between the wheels so that he can remove the cotter pin, adjust the brake linkage, and 

then replace the cotter pin. There is not enough vertical space to crawl underneath the railcar on 

his knees, so positioning his body in this manner requires some maneuvering. To get underneath 

the car, Durso would place a plastic mat along with the required tools next to the wheels and lay

down on his side. He would then “scootch” his body underneath the car while still on his side. 

Durso explained in his deposition that on this particular occasion, while “scootch[ing]” on his 

right side to get farther underneath the railcar, he slipped off the mat and “jam[med]” his right 

shoulder into the cement floor underneath him. R. 16-3 at Page ID # 142. He immediately felt 

pain in his shoulder and crawled out from underneath the car. Because he was in too much pain 

to return to work, he went to a hospital in Pontiac for an examination. When he returned from 

the hospital, he gave an audio statement describing the incident to the Risk Mitigation Officer. 

Notably, his initial statement conflicted with his deposition statement. On the day of the injury, 

Durso stated that the mat was underneath his shoulder when his shoulder jammed, but at his 

deposition, he said that his shoulder jammed into the concrete floor. 

Durso’s injury escalated and required surgery. He sued Grand Trunk, arguing that it

failed to provide him with a safe working environment as required by the Federal Employers’ 

Liability Act because Grand Trunk did not provide him with a proper-sized mat to perform the 

repair on a concrete floor. Alternatively, Durso argued, the repair should have been performed in 

a work pit or with a dolly. The district court granted summary judgment in favor of Grand Trunk 
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concluding as a matter of law that Grand Trunk had not breached its duty of due care in failing to 

provide a longer mat or failing to require brake repairs like this one be conducted in a work pit. 

We agree.

We review de novo a district court’s grant of summary judgment. Van Gorder v. Grand 

Trunk Western R.R. Inc., 509 F.3d 265, 268 (6th Cir. 2007). Summary judgment is appropriate 

“if the pleadings, the discovery and disclosure materials on file, and any affidavits show that 

there is no genuine issue as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56. We view all evidence and make all inferences in favor of the 

non-moving party. Matsushita Elec. Indus. Co, Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587–

88 (1986). In the context of claims under the Federal Employers’ Liability Act, courts favor jury 

resolution of all colorable factual issues. A plaintiff must “‘present more than a scintilla of 

evidence in order to create a jury question on the issue of employer liability, but not much 

more.’” Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 259 (6th Cir. 2001) (quoting 

Aparicio v. Norfolk & Western Ry. Co., 84 F.3d 803, 810 (6th Cir. 1996)).

To show negligence under the Federal Employers’ Liability Act, Durso must show that: 

(1) an injury occurred while he was working within the scope of his employment with Grand 

Trunk, (2) the employment was in furtherance of Grand Trunk’s interstate transportation 

business, (3) Grand Trunk was negligent, and (4) Grand Trunk’s negligence played some part in 

causing the injury for which compensation is sought. Van Gorder, 509 F.3d at 269; see also

5 U.S.C. § 51. Under this scheme, a railroad must provide its employees with a reasonably safe 

workplace. Van Gorder, 509 F.3d at 269. A railroad breaches that duty “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.” Id. To be 
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actionable, the railroad must have known or should have known that the standards of conduct 

were not adequate to protect its employees. Id. at 269–70.

Durso argues that Grand Trunk breached its duty to provide a reasonably safe workplace 

by failing to provide a work pit, a dolly, or a longer mat for this type of repair. His arguments 

fail. Although it may have been easier for employees to perform this repair in a work pit, there is 

no evidence that the lack of a work pit made the repair unreasonably unsafe. There is also no 

evidence that Grand Trunk knew or should have known about any alleged defect and then had an 

opportunity to correct it, as is required. Id. at 269–70 (citation omitted); see also Miller v. 

Cincinnati, New Orleans & Texas Pac. Ry. Co., 317 F.2d 693, 695 (6th Cir. 1963). In fact, 

Grand Trunk has been using this method at the Pontiac facility without work pits or dollies and 

without incident for as long as Durso has worked with Grand Trunk. Regarding the plastic mat, 

we are not convinced that the mat served any purpose other than convenience, because as Durso 

recognized, it was not required to make the repair. Because Durso cannot make out a prima facie 

case of negligence, summary judgment was proper.

Durso relies on his expert’s affidavit and on Gorman v. Grand Trunk Western R.R., Inc., 

No. 07-cv-12911, 2009 WL 2448604 (E.D. Mich. Aug. 10, 2009), to show there is a genuine 

issue of material fact. Neither provides him help. First Gorman, as in this case, addressed Grand 

Trunk’s failure to provide work pits for certain repairs that required the employee to work while 

kneeling or on the employee’s side. Id. at *2. The plaintiff in that case developed long-term 

injuries from repeatedly lifting heavy objects while lying in an awkward position making repairs. 

Id. at *6. The court concluded that there was sufficient evidence for a jury to conclude under the 

circumstances that the lack of work pits was unreasonably dangerous. Id. at *7. As the district 

court here pointed out, however, this case is different. Durso was not repeatedly performing 
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repairs and lifting heavy objects while in an awkward position. This is an acute injury. 

Moreover, in Gorman, there was some evidence that Grand Trunk had changed its practice from 

using work pits in the past to performing the repairs without them. Id. Here, employees had 

long been adjusting brake pistons in this manner without any incident.

Next, Durso’s expert claims that one of Grand Trunk’s safety rules applies here. Safety 

Rule M-17 requires an employee to keep an even weight distribution and stable footing when 

using hand tools. To comply with that rule, he argues, work pits were required. But this rule 

was clearly pertaining to repairs that require stable footing while standing to prevent falls. When 

making the kind of repairs at issue here, the employee is lying underneath the rail cars with no 

risk of falling. Durso cannot show that Grand Trunk failed to provide a reasonably safe work 

environment under these circumstances.

Because Durso has not presented sufficient evidence of negligence, we affirm.