# FILED
December 18, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) THEO JENNINGS , ) Shelby County Circuit Court ) No. 76115-6 T.D. Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 02A01-9803-CV-00056 ) ILLINOIS CENTRAL RAILROAD ) COMPANY , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Co

urt of Shelby

County at Memp

his. Honorable George H. Brown, Jr., Judge
James D. Causey , CAUSEY, CAYWOOD, TAYLOR, McMANUS & BAIL EY, Memphis, Tennessee Jerry E. Hinchey , H. Chris Christy , JONES & GRANGER, North Little Rock, Arkansas Attorneys f

or Plaintiff/Appe

llant. Harold W. McLeary, Jr. , Estelle C. Gaer

ig , SHUTTLEWORTH, SMITH, WILL IAMS, SABBATINI &

HARPER, Memphis, Tennessee Attorneys for Defendant/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) TATUM, Sr. J. : (Concurs)Plaintiff Theo Jennings app

eals the trial cou

rt’s order ente

ring summary

judgment in favor of Defendant/Ap

pellee Illino

is Central Railroa

d Company. We a

ffirm the trial court’s judgment based on our conclusion that, even when viewed in the light most favorable to

Jennings, the evidence fails t

o support a cause

of action again

st the Ra ilro ad under the Federal Employer’s Liability Act.

On July 11, 1995, Jennings was injured while working as a trackman for the Railroad. As part of his job dutie

s, Jennings used a m

aul hammer to drive

spikes into

railroad ties. On that day, when Jennings hit a spike with the maul, the wooden maul handle broke off at the iron head of the maul. The iron maul head struck Jennings in the knee, resulting in a disabling injury to Jennings. A subsequent inspection of the maul handle revealed that the handle had broken because it was “dry rotted.”
Jennings brought this action against the Railroad under the Federal Empl oye r’s Liability Act (FELA). See 45 U.S.C.A. §§ 51--60 (West 1986). Jennings’ complaint asserted that the Railr oad was negligent in, inter alia , failing to provi de Jennings with a r

easonably sa f e workplace and f

ailing to furnish

him with reasonabl

y safe equ

ipment.

Af ter its counsel deposed Jennings, the Railroad filed a motion for summar y judgment, contending it was entitled to a judgment as a matter of law on the issue of negligence. Jennings ’ deposition revealed that, at the time of his injury, he had worked for the Railroad for twenty-five

years. During his employment, Jennings ha d used air hammers, hydraulic hammers, and regular mauls to drive spikes. Jennings and his coworkers were required to use the re gular mauls when the automated hammers were not working. On the day of hi s injury, as required by the Railroad, Jennings carefu lly perfor med a visual inspec

tion of the maul’ s head and handle prior to using it. In the past, Jennings had used mauls when their handles ha d broken. If Jennings had observed a crack in the maul handle, he would not have used the mau l. In this cas e, Jennin gs did not observe anything

wrong with the maul. Despite this precaution, the maul handle brok e and Jenni ngs
was injured. Jennings knew that maul handles could break even when a visual inspection revealed nothing wrong with the handle.In opposing the Railroad’s motion for summary judg ment, Jennings file d the affidavit of one of his coworkers and the affidavit of a safety eng ineer. The affidavit of Jennings’ coworker confirmed

that, prior to Jennings’ injury, several identical spike mauls also had b roken off a t the maul head as a

result of the handle “dry rotting.” The coworker a verred that the mauls “had been left out in the weather in the back of company trucks unprotected fr om rain.”
Although the maul handle apparently was not available for inspection, th e safety
e ngineer, Jack Larks, was a ble to inspect the h

ead of the maul wh

ich allegedly

caused Jennings’ inj ury. During his examination of the maul hea d, Larks dis covered a date stamp of 1980. Larks opined that, “[b]ased o n the age of the maul, the handle should have been periodically inspected, testedand/or replace

d due to the stresse

s applied to the han

dle as a result of its normal and intended uses.” (While the maul’s he ad contained a da

te st a mp of 1980, we find no evidence in the record
as to the age of the wooden handle which brok e.) Larks also indicated that other equipment was availab le to the Railroad which would have presented “safer alternatives to using a maul to dr iv e spikes manually.” Specifically , Larks state

d that, in July 1995, “th

ere were hy

draulic and pneu

matic spike hammers and automatic spikedriving machines that could have been used to drive the spikes that Mr. Jennings was driving, which would have prevented the danger of the maul breaking .”

After consider

ing the foregoing evidence, the trial court gra nted the Railroad’s motio n for summ ary jud gment and di smis sed J ennin gs’ FELA claim with prejudic e. This appeal followed.

In enacting the FELA, Congress intended to depart from “common law principles of li ability as a ‘response to

the special need

s of railroad wor

kers who are dai

ly expose d to the risk s inherent in railroadwork and are he lpless to provide adequately for their own safety.’” Aparicio v. Norfolk & W. Ry. Co. , 84 F.3d 80 3, 807 (6th Cir. 1996) (quoting Sinkler v. Missouri Pac. R.R. Co. , 356 U.S. 326, 329 (1958)). Accordingly, Congress enac ted the F ELA as a “remedial and human i tarian statute” to “afford relief to employees from injury incurred in the railway industry.” Aparicio , 84 F.3d at 807 (quoting Edsall v. Penn Cent. Transp. Co. , 479 F.2d 33, 35 (6 th Cir.), cert. denied , 414 U.S. 1040 (1973)).

O ne of the ways in which Congress accomplished this goal was to provide for theapplication of a relaxed standard of proof in FELA cases. Ridings v. Norfolk S. Ry. Co. , 894

S.W.2d 281, 286 (Tenn. App . 1994). Un der this relaxed standard of proof, a plaintiff need not present the same quantum of evidence a s would be required in an ordinary negligence action. Instead, the plaintiff is required only to prove that the “railroad’s neglig ence played any part, even the slightest , in producing injury or death.” Id . (emphasis added) (citing Hall v. Norfolk S. Ry. Co. , 829 F. Supp. 1571 (N.D . Ga. 1993); Mitchell v. Missouri- Kansas-Texas R.R. Co. , 786 S.W.2d 659 (Tex.), cert. denied , 498 U.S. 896 (1990)).

Although a relaxed standar d of proof applies

in FELA case

s, “[t]he FELA does not make railroads the insurers of their employees.” Ridings , 894 S.W.2d at 286. Evidence of the mere
occurrence

of an accident is

not sufficient to

render an employer liable under the FEL A. Id
. (citing Southern Ry. Co. v. Bradshaw , 37 S.E.2d 150 (Ga. Ct. App. 1946)). In order to pre vail o n a FELA claim, the plaintiff must present “more than a scintilla” of eviden ce on each el ement of his or her claim. Smelser v. Norfolk S. Ry. Co. , 105 F.3d 299, 306 (6th Cir.), cert. denied , 118 S. Ct. 67 (1997); accord Aparicio v. Norfolk & W. Ry. Co. , 84 F .3d 803 , 80 8-1 0 (6 th C ir. 199 6). Spe cif ica lly, the plaintiff must p

resent “more tha

n a scintilla” of e

vidence to prove

the following ele

ments:
(1) [that ] an in

jury occurred while the plaintiff was working within the scope of his or her employment with the railroad, (2) [that] the employment was in the furtherance of the railroad’s interstate trans

portation business , (3) [that] the employer railroad was negligent, and (4) [that] the employer’snegligence p layed some

part in causing the injury for which

compensa

tion is soug

ht under th

e [FELA ].
Aparicio , 84 F.3d at 810; accord Smelser , 105 F.3d at 306 n.4.

Congress has g ra nted federal and state courts concurrent jurisdiction to determine claims under

the FELA. See 45 U.S.C.A. § 56 (West 1986). In FELA cases tried in state courts, the applicable

state rules gen

erally go vern procedura

l matters, while fe

deral law contro

ls a s to a ll matters of substanti ve l aw. Plunk v. Illinois Cent. R.R . , No. 02A01-9707-CV-00167, 1998 WL 227772, at *3 (Tenn. App. May 8, 1998), perm. app. denied (Tenn. Oct. 19, 1998); accord D uhon v.Southern Pac. Transp. Co. , No. 98-268, 1998 WL 690614, at **2 (La. Ct. App. Oct. 7, 1998). The

TennesseeRules of Civil Procedure provide that summary judgment is

appropriate only when the parties’ “pleadings, de

positions, answers to interrogatories, and admissions on file, together with the affidavits, if a ny, show that there is no genuine issue a s to any mate

rial fact and tha

t the moving party is entitled to a judg

ment as a matter of law.” T.R.C.P. 56 .04. In deter mining whether o

r not a genuineissue of material fact exists for purposes of summary judgment, the tri

al court is required to consider the question in the same manner as a motion for directed verdict made at the close of the plaintiff’s proof. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). That is, the trial court, and th

is court on appeal, “must take the strongest legitimate view of the evidence in favor of

the nonmoving part y, allow all

reasonable

inferences in favor of that party, and discard all counter vailing evidence.” Id . at 210-11.

In accordance w ith Tenness ee procedural law, the Railroad, as the party seeking summary judgment, had the initial burden of demonstrating that there were no disputed, m aterial facts creating a g

enuine issue for t

rial. Byrd v. Hall , 847 S.W.2d at 215. One way the Railroad could meet this burden was by demonstrating that Jennings would be unable to prove an essential element of his FELA claim, inasmuch as the failur e of proof on an e ssential element n

ecessarily would render all other

facts immaterial
. Horton v. Hughes , 971 S.W.2d 957, 959 (Tenn. App. 1998) ; see also Caledo

nia Lea sing & Eq

uip. Co. v. Armst

rong, Al len, Br aden, G oodma n , McBride & Prewitt , 865 S.W.2d 10, 13 (Tenn. App. 1992). Once the Railroad met its initial burden, the burden then shifted to Jennings to present evidence or to po

int to specific

evidence in the record demonstrating the existence of a disputedmaterial fact wh ich needed to

be resolved by the trier of fact. Byrd v. Hall, 847 S.W.2d at 215.

The dispute in the present case centers around whether the record contains more than
a scintilla of evidenceto support the third and fourth eleme

nts of Jennings’ FELA claim, i.e. that the Railroad was neg

ligent and that th

is negligence played some part in causing Jennings’ injury. On appeal, Jennings contends that the record c

ontains evidence

that t he Railroad had actual and/or constructive notice of the maul ’s tendency to break but did not ta

ke corrective a

ction toprevent the inj ury to Jennings and, further, that the Railroad failed to provide Jennings with an a lternativ e method, such as a hydraulic or pneumatic hammer, which was safer than using a maul to drivespikesman ual ly. Specifica lly, Jennings’ appeal focuses on the following evidence: (1) the statement of

Jennings’ coworker that the mauls “had been left out in the weather in the back of company trucks unprotected

from rain;” (2) t

he statements of Jen

nings and his cow

orker th at si milar mauls had broken in the past due to dry rot; (3) testimony by safety engineer Jack Lar

ks that, “[b]ased on the age of the mau l, the handle should have been periodically inspected, tested and/or replac ed;” and (4) testimony by

Jennings and L

arks that other me

thods, such as hy

draulic and pneu

matic hammers, were available which would have enabled Jennings to drive spikes without using a maul.

We conclude that the foregoing testimony and affidavits fail to pre sent more than a scintilla of evidence of the Railroad’s negligence a nd, th us, that the trial court properly entered summary judgment in favor of the Railroad. The affidavit of Jennings’ coworker revealed that the mauls “had been

left out in the weather in the back of company trucks unprotected fr om rain.” From this evidence, Jennings apparently asks us to draw the inference that the maul in qu estion wa s exposed to the elements over a period of time and that this exposure causedthe wooden handle of th e maul to dry-rot. The coworker’s statement merely reveals, however, that on one oc casion th e mauls were left outside in the back of company

trucks. The cowo

rker’s affida

vit fails to indicate the periodof time over which the mauls were expo

sed to the element

s or the number of o

ccasi ons on which such exposure was permitted to occur.

Al though a finder of fact properly may draw an inference from the direct and circumstantial evidence before it, it is well settled in Tennessee that an inference cannot properly

be drawnfrom another inference. Benton v. Snyder , 825 S.W.2d 409, 414 (Tenn. 1992). Our supreme court has explained that

[w]hat is meant by

this rule i s that “[a]n

inference can

be drawn only from t he facts in evidence, and cannot be based on surmise, speculation, conjecture, or guess; it must be reasonably

drawn from, andsupported by, the

facts on which it pu

rports to rest, and must be made in accordance

with correct and common modes of reasoning.”

Id . (quoting Patton v. L.O. Brayton & Co. , 201 S.W.2d 981, 984 (Tenn. 1947)).

In our view, the evid

ence that the mau

ls were exposed to th

e elements imperm

issiblywould

require us to make an inference upon an inference. To support Jennings’ theory of the case, thi s evidence would require the finder of fact to infer that exposure to the elements caused th e wooden handle of

the maul to dry-rot. The making of such an inference, in turn, would require the fact finder to make the initial inference that the maulwas left outside f or a sufficient p

eriod of time for such decay to occur. Such an inference would require speculation or conjecture as to the amount of exposure to which the maul had been subjected. Under these circumstan

ces, we conclude that the recordcontains insufficient evidence to permit the finder of fact to make the ultimate inf erenc e sought to be drawn in this case.

We also conclude that the record contains

insufficient evid

ence to permit

the finder of fact to draw the inference that the Railroad was negligent in failing to per

iodically ins

pect, test, and/or rep lace the maul handle. T he evidence indi

cated that similar

mauls had broken in

the past due to dry rot and that, based on the age of the maul’s head, the ma ul’s handle should have be e n periodically inspected, tested, and/or replaced.

It is true that a railro ad’s duty to p rovide a safe wo

rkplace include

s the duty “to provide tools that are rea sonably safe a nd suitable” for the employee’s use. Rodriguez v. Delray Connecting

R.R. , 473 F.2d 819, 821 (6th Cir. 1973). Other than the mere occurrence of Jennings’ accident,however, the record contains no evidence that the Railroad f

ailed to fulfill this duty. The record contains no evide

nce that the Railr

oad did not periodic

ally inspec

t, te st, and/or r eplace its maul handles. The only

evidence on this is sue suggests ju st the opposite because, by his own admission, Je nnings was requ ired to careful

ly inspect th

e handle of eac

h maul prior to using

it. Moreover, although the maul’s head contained a date stamp of 1980, the record contains no evidence
as to the age of the wooden handle on the maul that broke or, for that matter, on any other maul used by the Railroad. Thus, the evidence fails to indicate one way or the o

ther whether the

maul’s handle ever had been replaced.

As for Jennings’ ar

gument that safe

r alternative me

thods were avail

able for driving spikes, other courts

have held that the use of spike mauls to drive spikes is not an inherently unsafe method and that a railroad has no duty to provide emp loyees with an automated method of performing this task. In McKennon v. CSX Transportation, Inc. , 897 F. Supp. 1024 (M.D. Tenn.1995), the court explained:

The fact that there may have b e en an automated, or safer method, of work does not au tom atically render the chosen method unsaf e or negligent for purposes of FELA. Chicago R.I. & Pa c . R.R. v. Lint , 217 F.2d279, 282-83 (8th Cir. 1954). Under FELA, the proper inquiry is whether the method prescribed by the employer was reas onably

safe, not whethe

r the employ

er could have em

plo yed a safer alternative method for perform ing th e task. Stillman v. Nor folk& W. Ry. , 811 F.2d 834 (4th C ir. 1987). “That t

here ar e other, arguably more advanced, methods in use by the defendant

for [accomplishing the task at hand] is of no significance where the metho d in use by [the plaintiff] was not an inherently unsafe one. ” Soto v. Southern Pac. Transp. , 644 F.2d 1147, 1148 (5th Cir. 1981), cert. denied , 454 U.S. 969, 102 S. Ct. 514, 70 L. Ed. 2d 386 (1981). Where “[t]he task

at which [plaintiff] was injured was one th at could be safely done

by the method

which he was told to

use and was using,” the employer is not negligent by refusing to provide plaintiff with an automated means for accomplishing his task. Id
.

McKennon , 897 F. Supp. at 1027.

In McKennon , the plaintiff tor e a ligament in hi

s shoulder w hile using a maul to drive spikes. McKennon , 897 F. Supp. at 102 6. The court gra

nted the railroa

d’s motion for summa

r y judgment, ruling that

the railroad was

not negligent in

failing to provid

e the plaintiff wit

h a machine to drive the spikes. Id . at 1026-27. In so ruling, the court noted that the plaintiff had used the spike maul safely for

twenty y ears prior to his in

jury and tha

t the record cont

ained no evidenc

e that t h e maul in use

was defectiveor that the spike ma ul was not a safe a

nd appropriate w

ay to drive s

pikes. Id
. at 1 027; but cf

. Ro driguez v. Delray C onnecting R.R. , 473 F.2d 819, 821 (6th Cir. 1973) (affirming jury verdict wh ere plainti ff argued that old method of removin g spi kes with maul was unreasonable and that automatic spike puller was safer alternative).

In Duhon v. Southern Pacific Transportation Co. , No. 98-268, 1998 WL 690614, at **4 (La. Ct. App. Oct. 7, 1998), the plaintiff injured his lower back while swing

ing a spike maul. In a subsequent FEL

A action, the plain

tiff argued tha

t his employer s hould have provided an automatedtool to perform the task of driving spikes. Id ., at **1. Cit ing McKennon , the Louisiana Court of Appeal rejected this argument, noting that, under the FELA, the r elevant inquiry was not whether the railroad could have employed a safer alter native met hod for performing the task of driving spikes, but whether the method employed was reasonably safe. Id ., at **5. The courtconcluded that using a maul t

o drive spikes was

not inherently

unsafe, pointing to evidence that the plaintiff had been using th

e maul throughou

t his career with the

railroad, that he never before had been injured while using the ma ul, that the maul use

d was in good work

ing order, and t

hat th e plaintiff himself was responsible for taking the ma

ul out of service i

f he found that it wa

s not in working order. Id ., at **4-5.

In the present case, we similarly conc lude that the record contains no evidence that the maul was aninherently unsafe method of driving spikes such as to impose upon the Railroad the duty to provide an automated method of performing the task. Jennings had used the maul throughout his twenty-five-year

career with the Railroad. Although Jennings pres ented evide nce that the wooden handles of other mauls had broken in the past due to dry rot, the record contains no evidence
as to the frequency of these incidents. Moreover, the recor d contains no evi dence that t hese breakages resulted in injury to anyone. In fact, the record is silent as to any injuries suffe red by other Railroademployees while using the spike maul. In the absenc e of evidence that the use of the spike maul was an inherently unsafe method, we reject Jennings argument that the Railroad was negligent in failing to provide him with an automated tool to perform the same task.

The trial court’s judg

ment is affirmed. Costs of this appeal are taxed to Jennings, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ TATUM, SR. J. (Concur

s)