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FELA - Summary Judgment Procedure - Isolated Deposition Excerpts

Mohr v. CSX Transportation, Inc., [Ms. 1180338, May 22, 2020] __ So. 3d __ (Ala. 2020). The Court (Mitchell, J.; Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur) affirms a summary judgment entered by the Mobile Circuit Court for CSX Transportation, Inc. in an FELA action by Mohr, a CSX bridge mechanic. Mohr was injured when the cuff of his leather glove supplied by CSX was caught on the edge of a sheet metal pile being lifted by a crane. As a result, Mohr was lifted up and fell 10 feet on to some rip rap below the bridge.

Mohr argued that CSX breached its duty under the FELA to provide a safe work place by providing standard leather work gloves. On appeal of the summary judgment, “Mohr argue[d] that his and Laufhutte’s [a co-worker] deposition testimony constitutes substantial evidence indicating (1) that the standard leather work gloves he was issued were not reasonably safe and (2) that CSX had knowledge of the danger posed by the gloves.” Ms. *12.

The Court rejects this argument noting that the “Court has cautioned against the practice of relying on isolated excerpts of deposition testimony to argue in favor of a proposition the testimony as a whole does not support. ‘Even if portions of her expert’s testimony could be said to be sufficient to defeat a summary-judgment motion when viewed ‘abstractly, independently, and separately from the balance of his testimony,’ ‘we are not to view testimony so abstractly.’ Hines v. Armbrester, 477 So. 2d 302, 304 (Ala. 1985).’ Giles v. Brookwood Health Servs., Inc., 5 So. 3d 533, 550 (Ala. 2008). See also Riverstone Dev. Co. v. Garrett & Assocs. Appraisals, Inc., 195 So. 3d 251, 257-58 (Ala. 2015) (explaining that this Court’s standard of review when reviewing a trial court’s ruling on a motion for a judgment as a matter of law requires us to consider a witness’s testimony as a whole, not just isolated excerpts).” Ms. *15.

Viewed as a whole, the deposition testimony of Mohr and Laufhutte did not provide “substantial evidence indicating that, before Mohr’s accident, CSX knew or should have known that the leather work gloves it provided to its employees were not reasonably safe.” Ms. *27.

The Court also affirms as to Mohr’s claim that CSX failed to provide a safe place to work by not requiring more than one tag line on a load suspended by a crane, explaining

“A railroad breaches its duty to provide a safe workplace if it ‘knew or should have known of a potential hazard in the workplace, and yet failed to exercise reasonable care to inform and protect its employees.’” Tootle, 746 F. Supp. 2d at 1337 (quoting Ulfik, 77 F.3d at 58). It is undisputed that CSX had appropriately recognized that a load suspended by a crane presents a potential hazard because it might begin to rotate. CSX therefore had a safety rule in place requiring its employees to use tag lines to control such loads. That safety rule left it to the discretion of the employees to determine how many tag lines are necessary, and all four members of Mohr’s crew, as well as their supervisor May, testified that it was reasonable to use one tag line for the task the crew was performing when Mohr was injured. There is no testimony in the record indicating otherwise, and “‘the mere fact that the injury occurred’” is insufficient to show that CSX’s safety rules were not adequate. Glass, 905 So. 2d at 793 (quoting Atlantic Coast Line R.R. v. Dixon, 189 F.2d 525, 527 (5th Cir. 1951)). See also Durso v. Grand Trunk Western R.R., 603 F. App’x 458, 460 (6th Cir. 2015) (“To be actionable, the railroad must have known or should have known that the standards of conduct were not adequate to protect its employees.”). In the absence of any evidence indicating that CSX should have known that one tag line was insufficient to protect its employees at the time Mohr was injured, CSX was entitled to a judgment as a matter of law on Mohr’s claim.

Ms. **28-29.

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