Employment — FELA

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United States Court of Appeals For the Seventh Circuit

Civil

Employment — FELA

Summary judgment was improperly granted to a railroad on an employee’s FELA claim, even though he presented no direct evidence of negligence and no expert testimony.

“In the district court, Lynch presented evidence that the foreman at the worksite had an ongoing obligation to inspect the work being performed at each phase, and that in the foreman’s absence the assistant foreman had that responsibility. At the time of the incident, the foreman was away from the jobsite acquiring needed materials, but the assistant foreman, Reyes, was present. There was also testimony that crew members individually had an obligation to inspect.”

“In addition, the record contained testimony from some of the crew members as to the procedures for measuring and cutting the top rail so that it fit snugly, as deeply-seated into the cups attached to the fence posts as possible. Scott had worked for 18 or 19 years as a B & B mechanic at Metra and installed fences regularly during that time. He testified that a rail that is cut to the proper length and tightened in the cup should not be able to come out of the cup. Otero, who had 11 years of experience working for Metra as a B & B mechanic, similarly testified that a rail that is cut to the proper length and secured in the cup should not be able to fall out. He further opined that the grade of the hill might have impacted it. He testified that in installing the mesh on the posts and rails, there was concern regarding the impact of the grade of the hill, and that a trench was dug in front of one of the posts in the area of the accident in order to accommodate for the impact of the grade of the hill on the ability to properly secure the mesh to the posts and rail. Finally, Lynch presented evidence that although workers received training on a number of mechanic tasks, they received no formal training for installing fences, although they engaged in that task on a regular basis. They learned how to install fences “on the job,” from other crew members involved in the installation. Although Otero had been a mechanic for 11 years, he had never worked on a fence with an elevation difference like the one involved here, which he described as at least a 2-3 foot drop between posts. He received no training on installing fencing in circumstances such as that one.”

“That evidence is sufficient to present a genuine issue of fact concerning the causation issue. From that testimony, a jury could reasonably conclude that the top rail fell out because it was either cut too short or improperly tightened in the cup by a Metra employee. The jury could further conclude that the problem would have been discovered if a Metra employee had inspected the top rail after it was installed and before the next phase, fastening the mesh to the skeleton, was initiated. Finally, a jury could determine that the failure to provide training in fence installation left the crew members ill-equipped to adjust to non-standard conditions such as the steep grade of the hill, and that the inability of the employees to anticipate the impact of that grade on the rail contributed to the fall.”

Vacated and Remanded.

11-2173 Lynch v. Northeast Regional Commuter Railroad Corp.

Appeal from the United States District Court for the Northern District of Illinois, Bucklo, J., Rovner, J.