Lafevers v. Norfolk Southern Railway Company et al

Filing 38

ORDER granting 17 Motion for Summary Judgment; finding as moot 22 Motion to Strike. Signed by Honorable Timothy M Cain on 6/23/2014.(gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Dennis L. Lafevers,
Plaintiff,
v.
Norfolk Southern Railway Company,
and Norfolk Southern Corporation,
Defendants.

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Civil Action No. 6:13-1460-TMC

ORDER

This matter is before the court on the defendants’ motion for summary judgment (ECF
No. 17) and motion to strike (ECF No. 22). The parties have fully briefed both motions and the
court heard oral argument on the relevant issues on May 22, 2014. For the reasons that follow,
the court grants the defendants’ motion for summary judgment and denies the motion to strike as
moot.
BACKGROUND
The plaintiff, Dennis L. Lafevers (“Lafevers”), worked in the defendants’ Norfolk
Southern Railway Company and Norfolk Southern Corporation’s (collectively “Norfolk”) Bridge
and Building Department. In his complaint, Lafevers alleges that on September 11, 2012, while
working as a flagging foreman, he suffered a back injury. As a flagging foreman, Lafevers was
tasked with lifting and carrying derails, pieces of track equipment weighing between 38 and 43
pounds. On September 10, 2012, Lafevers installed and uninstalled seven derails without help.
On September 11, 2012, he installed and uninstalled six derails without help. After uninstalling
the derails on September 11, Lafevers began having pain in his lower back and had to seek
medical attention. He has not returned to work since the injury.

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In opposing Norfolk’s motion for summary judgment, Lafevers relies heavily on his own
affidavit, the affidavit of Mark Heidebrecht, a certified ergonomist, and deposition testimony of
Dr. Silver, his neurosurgeon.
LEGAL STANDARD
Summary judgment is appropriate if, after reviewing the entire record in a case, the court
is satisfied that no genuine issues of material fact exist and that the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue of fact is “genuine” if the evidence
is such that a reasonable jury could return a verdict for the plaintiff. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Issues of fact are “material” only if establishment of such facts
might affect the outcome of the lawsuit under the governing substantive law. Id.
DISCUSSION
Lafevers brought this action under the Federal Employers Liability Act (“FELA”), 45
U.S.C. §§ 51-60. The FELA provides the exclusive remedy for a railroad employee to recover
damages for injuries caused by his employer’s negligence. S. Buffalo Ry. Co. v. Ahern, 344 U.S.
367, 374 (1953). In order to recover under the FELA, a plaintiff must prove: (1) the defendant
owed a particular duty of care; (2) a breach of that duty; (3) foreseeability; and (4) causation.
Brown v. CSX Transp., Inc., 18 F.3d 245, 249 (4th Cir. 1994).
Lafevers asserts that Norfolk breached its duty to (1) instruct and train him how to safely
lift and carry derails and (2) provide a safe workplace.
A.

Duty to Train
Lafevers bases his duty to train claim, in large part, on 49 C.F.R. § 217.1, which provides

generally that “each railroad is required to instruct its employees in operating practices.” Here,
Lafevers argues that Norfolk failed to properly train him how to lift and carry derails. However,

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in deposition testimony, Lafevers admitted that he not only attended “back classes,” where
employees received safety training on proper lifting technique, but he actually taught several of
those classes.1
Lafevers does not allege that these classes were improper or inadequate, only that nothing
in his training specifically addressed lifting and carrying derails. Lafevers has not presented and
the court has not found any legal authority suggesting that the railroad’s duty to train requires it
to provide specific training on each task its employees might have to perform. In this case, the
parties do not dispute that the railroad provided, and Lafevers attended, adequate training classes
specifically addressing how to properly lift heavy objects, such as derails.

Accordingly,

Norfolk’s motion for summary judgment is granted as to Lafevers’ claim of inadequate training.
B.

Duty to Provide Safe Workplace
Under the FELA, a railroad’s general duty is to use reasonable care in providing its

workers with a reasonably safe place to work. Shenker v. Baltimore & Ohio R.R. Co., 374 U.S.
1, 7 (1963). Lafevers asserts that Norfolk breached this duty when it denied his request for help,
in the form of additional manpower, installing the derails.
“As part of its duty to provide a safe work environment, employers must provide workers
with sufficient manpower to accomplish an assigned task.” Coomer v. CSX Transp., Inc., 97
F.3d 1451 (6th Cir. 1996) (unpublished table decision) (citing Blair v. Baltimore & Ohio R.R.,
323 U.S. 600, 604-05 (1945)). Thus, “FELA negligence may be predicated on the railroad’s
failure to furnish sufficient help if, but for that failure, the injury would not have occurred.”
Montgomery v. CSX Transp., Inc., 376 S.C. 37, 55 (2008) (citing Yawn v. Southern Ry. Co., 591

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According to Lafevers’ training records, he either attended or taught eight back classes in the five years prior to his
injury.
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F.2d 312, 315 (5th Cir. 1979), cert. denied, 442 U.S. 934 (1979); Deere v. Southern Pac. Co.,
123 F.2d 438, 441 (9th Cir. 1941), cert. denied, 315 U.S. 819 (1942)).
To determine whether the employer provided sufficient manpower, courts look to the
nature of the assigned task. See, e.g., Coomer, 97 F.3d at *2 (affirming the district court’s grant
of summary judgment for the employer where “[t]he district court found that each of the tasks
performed by the employees assigned to the gang were single-person tasks, and the result of
having more workers would simply have been to have finished the day’s work more quickly”);
Lewis v. CSX Transp., Inc., 778 F. Supp. 2d 821, 840 (S.D. Ohio 2011) (denying plaintiff’s lack
of adequate manpower claim where plaintiff failed to show that his particular task required more
assistance); McKennon v. CSX Tansp., Inc., 897 F.Supp. 1024, 1027 (M.D. Tenn. 1995)
(granting summary judgment for the employer where it assigned two workers to do a two-person
job), aff’d, 56 F.3d 64 (6th Cir. 1995). “In most cases where plaintiffs have survived summary
judgment on lack of manpower claims, the plaintiffs have presented evidence that they were
forced to perform a particular task that usually required more assistance and that under the
circumstances, it was unreasonable to require the plaintiff to perform the task without
assistance.” Lewis, 778 F. Supp. 2d at 840.
In this case, Lafevers does not dispute that installing derails is a one person job and that,
even if more than one person is assigned to the job, a single person carries each derail. Thus,
assigning an extra worker to that task may decrease the number of derails each worker has to
carry and the time it would take to complete the job, but it would not change the nature of the
work. Under these circumstances, Norfolk’s decision not to assign additional workers to assist
Lafevers does not constitute negligence. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532,
558 (1994) (quoting Lancaster v. Norfolk & Western R. Co., 773 F.2d 807, 813 (7th Cir. 1985),

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cert. denied, 480 U.S. 945 (1987)) (“In short, the core of [the plaintiff’s] complaint was that he
‘had been given too much—not too dangerous—work to do. That is not our idea of an FELA
claim.’”); Coomer, 97 F.3d at *2 (“Plaintiff admitted that lifting a splice bar required only one
person, and that the assignment of more workers would not have aided him in performing that
task individually. As the district court noted, it is too tenuous to argue that the presence of more
workers would have prevented plaintiff’s injury.”); McKennon, 897 F.Supp at 1027 (“[T]he fact
that Plaintiff’s job would have been easier if there had been more workers does not constitute
negligence on the part of Defendant, nor does it create an unreasonably unsafe work
environment.”).
Lafevers asserts that his case is distinguishable because he has provided ergonomic
expert testimony that Norfolk did not provide a reasonably safe workplace for Lafevers to
perform his job. Specifically, Lafevers’ ergonomic expert concludes that “[m]anual handling job
tasks performed on September 11th and 12th of 2012 while employed with Norfolk Southern
Railway did contain ergonomic risk factors that are consistent with the epidemiological evidence
known to contribute to low back injuries similar to those of Mr. Lafevers” and that Norfolk knew
of the risk factors. (Heibrecht Aff., ECF No. 18-3 p.7.) The expert, however, does not offer any
opinion regarding a sufficient number of workers to perform the job Lafevers was tasked with or
if assigning more workers to the task would have had any impact on the ergonomic risk factors.
Thus, while the expert’s testimony could have played a role in the court’s causation analysis,
Lafevers has failed to show that there is any genuine issue of fact as to Norfolk’s duty or breach
thereof, so the court does not reach the question of causation.2

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The court notes, however, that Lafevers could have difficulty overcoming even the very lenient FELA causation
standard given his history of similar back problems, the degenerative nature of his previous back issues, and the lack
of evidence in the record directly linking his current pain to the job he performed for Norfolk.
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CONCLUSION
Therefore, after a thorough review of the record in this case, the court finds that there is
no genuine issue of material fact and that Norfolk is entitled to judgment as a matter of law.
Accordingly, Norfolk’s motion for summary judgment (ECF No. 17) is GRANTED and its
motion to strike (ECF No. 22) is now MOOT.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
June 23, 2014
Anderson, South Carolina

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

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