NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION 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 . ) ) ) ) ) ) ) ) ) ) ) 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.
McK EAGUE , Circuit Judge. Anthony Durso, a c arman 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 Trun k , worked most of his career in the Pontiac Yard where he inspected, r epaired, and maintained rail cars. On the day o f the injury, Durso was working with an other carman, Patrick Mardney. Around noon, Mardney told Durso that a brake adjustment on a tank railcar was needed to adjust a long piston to co mply withCase No. 14

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Durso v. Grand Truck Western R .R . Co.

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- Federal Railroad Administration regulations. If the piston i s 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 undernea th 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 requ ires 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 o n 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 th e cement floor underneath him. R. 16

- 3 at Page ID # 142. He imm ediately 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 Gra nd 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 doll y . The district court granted summary judgment in favor of Gran d TrunkCase No. 14

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Durso v. Grand Truck Western R .R . Co.

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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 gr ant of summary judgment. Van Gorder v. Grand Trunk Wester

n 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 i ssue 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’ Liab ility Act, courts favor jury resolution o f 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’ Liabil ity Act, Durso must show that: (1) an injury occurred while he was working within the scope of his employment with Grand Trunk , (2) the employmen t 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 Gorde r , 509 F.3d at 269. A railroad breaches that duty “when i t f ails 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 beCase No. 14

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- action able, 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 doll y , 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

. T here 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 tha t 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 a nd on Go rman 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 provide s him help. First Gorman , as in this case, addressed Grand Trunk’s failure to p rovide 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 l ying 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 cas e is different. Durso was not repeatedly performingCase No. 14

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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 require s 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 preven t falls. When making the kind of repairs at issue here, the employee is l ying underneath the rail cars with no risk of falling. Durso cannot show that Grand Trunk failed to provide a reasonably safe work environment under the se circumstances.
Because Dur so has not presented sufficient evidence of negligence , we affirm.