Filed: Aug. 22, 2011
Latest Update: Mar. 02, 2020
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT AUGUST 22, 2011 No. 10-14136 JOHN LEY _ CLERK D.C. Docket No. 1:07-cv-01622-GET ROLAND L. WALKER, DEBORAH P. WALKER, llllllllllllllllllllllllllllllllllllllll Plaintiffs - Appellants, versus CSX TRANSPORTATION, INC., a Virginia Corporation, JOHN DOES 1-10, Georgia Residents, NORFOLK SOUTHERN RAILWAY COMPANY, a Virginia Corporation, NORFOLK SOUTHERN CORPORATION, a Virginia Corpor
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT AUGUST 22, 2011 No. 10-14136 JOHN LEY _ CLERK D.C. Docket No. 1:07-cv-01622-GET ROLAND L. WALKER, DEBORAH P. WALKER, llllllllllllllllllllllllllllllllllllllll Plaintiffs - Appellants, versus CSX TRANSPORTATION, INC., a Virginia Corporation, JOHN DOES 1-10, Georgia Residents, NORFOLK SOUTHERN RAILWAY COMPANY, a Virginia Corporation, NORFOLK SOUTHERN CORPORATION, a Virginia Corpora..
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 22, 2011
No. 10-14136 JOHN LEY
________________________ CLERK
D.C. Docket No. 1:07-cv-01622-GET
ROLAND L. WALKER,
DEBORAH P. WALKER,
llllllllllllllllllllllllllllllllllllllll Plaintiffs - Appellants,
versus
CSX TRANSPORTATION, INC.,
a Virginia Corporation,
JOHN DOES 1-10,
Georgia Residents,
NORFOLK SOUTHERN RAILWAY COMPANY,
a Virginia Corporation,
NORFOLK SOUTHERN CORPORATION,
a Virginia Corporation,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees,
UNILEVER BESTFOODS OF NORTH AMERICA,
a Division of Conopco, Inc., a New York Corporation,
llllllllllllllllllllllllllllllllllllllll Defendant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 22, 2011)
Before TJOFLAT, WILSON and RIPPLE,* Circuit Judges.
TJOFLAT, Circuit Judge:
I.
A.
This negligence suit under Georgia law stems from an injury Roland Walker
suffered as he unloaded freight from a railcar in July 2005. At that time, Walker
worked for Exel, Inc., the operator of a shipping and receiving facility in Fairburn,
Georgia,1 which exclusively receives deliveries of food products from Unilever
Bestfoods of North America (“Unilever”) on behalf of local Fairburn businesses.
On July 22, the railcar arrived at Exel loaded with fifty-six pallets of containers of
Unilever-produced mayonnaise that Unilever had loaded and shipped from its
Chicago facility. The railcar was delivered by rail carrier CSX Transportation, Inc.
*
Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
1
Exel operates several of these shipping and receiving facilities throughout Georgia.
2
(“CSX”);2 the car was, however, the property of another rail carrier, Norfolk
Southern Railway Company and Norfolk Southern Corporation (collectively,
“Norfolk Southern”).3
The railcar was equipped with two interior bulkhead doors, or “interior load
divider partitions,” that allowed the car to be divided into three sections—a center
compartment and two side compartments—for the organized loading of freight.4
The bulkhead doors, each weighing 1,000 pounds, were suspended from the
railcar’s interior ceiling by a carriage assembly that rolled along a parallel set of
ceiling and floor tracks that ran the length of the railcar. To load and unload one of
the side compartments behind a bulkhead door, an individual would move the door
back and forth within the railcar along the door’s track system by squeezing a
handle, or “release latch,” in the center of the door, which would cause four spring-
loaded “locking pins,” one in each of the door’s corners, to retract from receptacles
2
The railcar was delivered to Unilever for loading by the Belt Railway of Chicago
(“BRC”) on July 11, 2005. On July 12, 2005, BRC picked up the loaded and sealed car from
Unilever and delivered it to CSX. CSX then transported the car to Fairburn and delivered it to
Exel’s facility on July 22; the loaded car remained sealed from the time it left Unilever’s facility
until its delivery to Exel.
3
Norfolk Southern leased the freight car but, as Norfolk Southern admits, “for all
practical purposes . . . was the owner.” Despite belonging to Norfolk Southern, the railcar, by
July 2005, had not been operating on the Norfolk Southern railway system for over 10 months;
instead, it had been in the possession of other rail carriers, including CSX.
4
The railcar was manufactured in 1972; the model is no longer in normal use.
3
in the lower and upper tracks along which the door operated. Once the locking
pins were disengaged, the door could be pushed or pulled freely along its tracks.
Thus, when a side compartment of the railcar was loaded with cargo, a bulkhead
door would be operated in this way and positioned tightly against the cargo to hold
it securely in place during transit. The door would then be locked against the cargo
by releasing the door’s latch, causing the spring-loaded locking pins to extend back
into the track receptacles5—the tracks contained numerous receptacles, allowing
the bulkhead door to be locked throughout most of the railcar. In turn, to unload
the compartment behind a locked bulkhead door, an individual would squeeze the
door’s release latch to retract the locking pins, allowing the door to be pushed or
pulled down the tracks and away from the stored cargo.
Exel assigned employee Rodney Thomas to unload the pallets of
mayonnaise containers from the railcar. Thomas commenced the unloading
process by opening the railcar’s exterior door, at which time he discovered that the
pallets Unilever had loaded in the car’s center compartment—sixteen in total—had
shifted during transit. As a result, Thomas, prior to unloading the pallets, took
photographs to evidence the load shift, anticipating that a claim for loss of product
might later arise. He then unloaded the pallets using a forklift.
5
Due to this function, the release latch on the door is often referred to as a “hand brake.”
4
After that, Thomas sought to unload the pallets loaded in the side
compartments behind the two interior bulkhead doors; twenty pallets were loaded
behind each door. When Thomas squeezed the doors’ release latches, however, he
discovered that the doors’ locking systems were “jammed,” that is, that their
locking pins would not easily retract from the receptacles in the ceiling tracks.
Thomas then saw Walker working nearby, so he asked Walker if he would assist
him in opening the doors; Walker agreed to help and entered the railcar.6 The two
men then proceeded to try to disengage one of the doors: Thomas moved the
release latch back and forth in an attempt to loosen it, while Walker grabbed onto
the door’s frame and pulled.
Soon the bulkhead door’s locking pins retracted. Once that happened,
however, the door rushed forward at Walker and Thomas. As it was later
discovered, as with the center compartment, several of the pallets of mayonnaise
containers loaded behind the door had shifted during transport, causing ten to
twelve of the pallets—weighing between 18,000 and 22,000 pounds7—to fall
against the door and to propel the door forward along its tracks. Thomas
immediately released the door’s latch, yet the locking pins did not extend back into
6
Thomas never mentioned to Walker the load shift in the center compartment.
7
A single pallet of the mayonnaise containers weighed approximately 1,800 pounds.
5
the track receptacles, and the door continued to charge rapidly at the two men.
Thomas, who was positioned near the railcar’s exterior door, quickly jumped from
the car, but Walker was not able to do so and was struck by the bulkhead door.
The door’s force then drove Walker into the other interior door, pinning him
between the two.8
Paramedics eventually released Walker from the doors’ clasp, but only after
Thomas and other Exel coworkers had removed the fallen pallets of mayonnaise
containers from behind the door in order to push the door back along its tracks. As
a result of his crushing accident, Walker suffered severe injuries to his shoulder,
chest, and leg, all of which required extensive medical care and treatment.9
B.
On June 11, 2007, Walker sued CSX for negligence;10 he subsequently
8
Thomas, in a handwritten statement provided to Exel following the accident, explained
the situation thusly:
In the beginning started on left side bulk head Door (stuck) so started on Right,
upon releasing the hand brakes, the pressure was just too great, so it just release
itself. I jump out of the way (Rodney) because I was more on the outside or
closer. The only thing Roland could’ve done was brace hisself because he no
time too [sic] do anything else.
9
As compensation for his injury and lost income, Walker received payments from Exel’s
insurer under Georgia’s workers’ compensation statute, O.C.G.A. § 34-9-1, et seq. As of June 2,
2008, those payments had exceeded $109,700.
10
Walker brought the lawsuit in the Superior Court of Fulton County, Georgia. His
wife, Deborah Walker, joined him as a plaintiff, seeking consequential damages for loss of
consortium. For ease of discussion, we simply refer to the Walkers collectively as “Walker.”
6
amended his complaint on June 29, 2007, to add Norfolk Southern as a defendant.11
In his amended complaint, Walker claimed that Norfolk Southern and CSX
(collectively, “Defendants”) were jointly and severally liable for his injury in
negligence, and he sought compensatory damages. Walker alleged that Defendants
had not regularly inspected and maintained the interior bulkhead door’s locking
system prior to his injury, despite having had multiple opportunities to do so when
the car had been in their possession. These omissions were negligent, Walker
asserted, because regular inspections and maintenance of the door were required
under Georgia common law and various rules and guidelines issued by the
Association of American Railroads (the “AAR”), a private railroad-industry trade
association to which Defendants belong. Moreover, this negligence, Walker
11
In addition to CSX and Norfolk Southern, Walker’s amended complaint named, as
defendants, Unilever and ten fictitious “John Does” (i.e., unidentified corporate entities based in
Georgia and/or residents of Georgia who were responsible or otherwise involved in the
maintenance, inspection, and loading of the railcar). On November 3, 2008, Walker settled with
Unilever, and Unilever was dismissed from the case.
On July 12, 2007, Defendants, under 28 U.S.C. § 1441(a), removed the action to the
United States District Court for the Northern District of Georgia based on that court’s diversity
jurisdiction under 28 U.S.C. § 1332(a). Diversity existed because Walker is a Georgia citizen,
while CSX and Norfolk Southern are both Virginia corporations and Unilever is a division of
Conopco, Inc., a New York corporation. Moreover, that the fictitious defendants were likely
Georgia citizens did not destroy complete diversity because § 1441(a) requires that fictitious
“named” parties be disregarded for purposes of diversity jurisdiction. See 28 U.S.C. § 1441(a)
(“For purposes of removal under this chapter, the citizenship of defendants sued under fictitious
names shall be disregarded.”); see also Wilson v. Gen. Motors Corp., 888 F.2d 779, 782 n.3
(11th Cir. 1989) (discussing the significance of this language in § 1441(a)); Universal Commc’n
Sys., Inc. v. Lycos, Inc.,
478 F.3d 413, 426 n.10 (1st Cir. 2007) (“The presence of John Does
does not destroy diversity jurisdiction in cases removed to federal court.”).
7
claimed, had caused his injury, since reasonably discoverable and curable defects
in the door’s locking system—which Walker’s complaint characterized as a “safety
mechanism”—had kept the locking system from functioning properly at the time of
his injury. According to Walker, had the locking system worked as intended and
not been defective, it would have averted his injury by bringing the door to a dead
stop once Thomas released the door’s latch.
1.
To corroborate his allegations as to the cause of his injury, Walker, during
discovery, retained a putative railcar expert named Michael Micek.12 Micek
opined, both in a written report and on deposition, that the bulkhead door’s locking
system was, in fact, designed as a “fail-safe safety device” to protect workers like
Walker, since the locking pins were spring-loaded. Thus, Micek stated, if, as here,
cargo fell against the door, causing it to charge forward along its tracks,13 the
locking pins were designed to extend back into the track receptacles once the
door’s latch was released and to instantly retard the door’s movement. Hence, in
Micek’s opinion, had the locking system functioned properly, as soon as Thomas
12
Micek worked for a railroad between 1965 and 1979; after that, he was an inspector
with the Federal Railway Administration for approximately 22 years.
13
Micek agreed that it was the pallets of mayonnaise containers that fell against the
bulkhead door that caused the door to move rapidly forward after Thomas and Walker had
disengaged the door’s locking system.
8
released the door’s latch, the locking pins would have inserted themselves into the
track receptacles and stopped the door’s rush, notwithstanding that 18,000 pounds
or more of fallen cargo were pressing the door forward. The locking system,
however, did not function in that intended way, Micek posited, because the door’s
locking system had become defective due to poor maintenance by Defendants.
That is, according to Micek, “[t]he root cause of th[e] accident . . . was the
mechanical imperfections and defective conditions of the locking rails,” and the
fact that thousands of pounds of shifted cargo were pressing against the door and
propelling it down the track “doesn’t matter.”14
2.
After discovery closed, Norfolk Southern moved the district court to exclude
from evidence Micek’s proposed expert testimony, challenging Micek’s
qualifications as an expert under Federal Rule of Evidence 70215 and Daubert v.
14
On October 20, 2007, Micek performed a visual inspection of the railcar; the car by
then, however, had been retired.
15
Fed. R. Evid. 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to
the facts of the case.
9
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786,
125 L. Ed. 2d
469 (1993). Additionally, Defendants moved for summary judgment under Federal
Rule of Civil Procedure 56,16 arguing that they were entitled to judgment as a
matter of law because the record evidence raised no triable issues of fact for the
jury as to whether Defendants were liable under Georgia negligence law.17 The
district court ruled on all the motions in the same order.
First, the court granted Norfolk Southern’s motion to exclude Micek’s expert
testimony.18 Norfolk Southern had argued that Micek’s expert opinions should be
excluded because they were not scientifically based, premised upon sound
methodology, or concerned with areas with which Micek had significant
16
Summary judgment is granted only if the moving party shows that there is no genuine
dispute as to any material fact and that the moving party is therefore entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a).
17
The motion to exclude Micek’s expert testimony and the motions for summary
judgment were all filed on May 29, 2009.
18
We have established, as the district court noted,
that in determining the admissibility of expert testimony under Rule 702, we
engage in a rigorous three-part inquiry. Trial courts must consider whether: (1)
the expert is qualified to testify competently regarding the matters he intends to
address; (2) the methodology by which the expert reaches his conclusions is
sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and
(3) the testimony assists the trier of fact, through the application of scientific,
technical, or specialized expertise, to understand the evidence or to determine a
fact in issue.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quoting City of Tuscaloosa v.
Harcros Chems., Inc.,
158 F.3d 548, 562 (11th Cir.1998)).
10
experience based on his prior occupations. In particular, Norfolk Southern had
challenged Micek’s basis for testifying that the bulkhead door’s locking system
was designed as a safety device that could reengage and stop the movement of the
door as 18,000 pounds or more of cargo fell against it. In ruling on the motion, the
court correctly sided with Norfolk Southern, holding that, in short, Walker “ha[d]
not met [his] ‘burden of establishing qualification, reliability, and helpfulness’” of
Micek’s expert opinions. Order 8, July 29, 2010 (quoting United States v. Frazier,
387 F.3d 1244, 1260 (11th Cir. 2004)).19
19
The district court concluded that Micek was unqualified to offer expert testimony
about the design, operation, and inspection of the bulkhead door because (1) although he had
significant experience working in the railroad industry, his experience with bulkhead doors was
self-described as “infrequent” and occurred over thirty to forty years before this case arose; (2)
he was not an engineer, and admitted that he had no experience or training as to the design or
manufacture of bulkhead doors or analyzing the materials used to construct, operate, or secure a
bulkhead door system; and (3) he testified that, prior to this case, he had never investigated an
accident involving a bulkhead door, nor personally observed a bulkhead door move in the way
the one that injured Walker did. Moreover, Micek never adequately explained the methods he
used to reach his opinion that the bulkhead door’s locking system was a “fail-safe safety device”
that, if it had been functioning properly, would have brought the rushing door to a dead stop,
notwithstanding the force of between 18,000 and 22,000 pounds of cargo pushing it down its
tracks. Thus, the district court held:
[W]hile [Micek] may have extensive experience in the railway industry, he was
not qualified and did not utilize a sufficiently reliable methodology to offer
opinions regarding the design, operation, and alleged safety features of the subject
bulkhead door system or the amount of weight or force the bulkhead door locking
pins could overcome.
....
. . . Micek’s opinions, therefore, lack the indicia of reliability necessary to
survive a Daubert inquiry and challenge under Rule 702.
Order 8–9, July 29, 2010 (citing McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1240 (11th
Cir. 2005)).
11
The court then granted Defendants’ motions for summary judgment, holding
that the record evidence was insufficient to raise a triable issue of fact on various
elements necessary for Walker to prevail on his negligence claims. In Georgia, a
negligence plaintiff must establish four elements:
(1) [that the defendant had a] legal duty to conform to a standard of
conduct raised by the law for the protection of others against
unreasonable risks of harm; (2) a breach of this standard; (3) a legally
attributable causal connection between the conduct and the resulting
injury; and, (4) some loss or damage flowing to the plaintiff’s legally
protected interest as a result of the alleged breach of the legal duty.
Booth v. Quality Carriers, Inc., 623 S.E.2d 244, 246 (Ga. Ct. App. 2005) (quoting
Heston v. Lilly,
546 S.E.2d 816, 818 (Ga. Ct. App. 2001)). However, the evidence
here, the district court ruled, was insufficient for a jury to reasonably infer either
that Defendants had breached a legal duty of care by failing to regularly inspect
and maintain the bulkhead door or that those omissions, even if negligent,
proximately caused Walker’s injury. Accordingly, the court dismissed Walker’s
claims against Defendants as a matter of law. Walker now appeals.
II.
In his brief on appeal, Walker challenges only that portion of the district
court’s order granting Defendants summary judgment.20 He claims that the district
20
We review the district court’s grant of summary judgment de novo, applying the same
legal standards that bound the district court. See Smith v. Lockheed-Martin Corp., 644 F.3d
1321, 1327 n.23 (11th Cir. 2011). Because we review the record on a motion for summary
12
court erred because there is a triable issue as to whether Defendants were negligent
in failing to regularly inspect and maintain the bulkhead door. Walker’s argument
is based on various AAR rules and guidelines that, he says, required Defendants, as
AAR members, to inspect and maintain the bulkhead door annually.21 Walker
declares that, under Georgia law, the district court erred in not considering these
privately established rules as “illustrative of [the defendants’] negligence” and thus
as creating a question of fact for the jury. See, e.g., Luckie v. Piggly-Wiggly S.,
Inc., 325 S.E.2d 844, 845 (Ga. Ct. App. 1984) (“Privately established rules are
admissible as illustrative of negligence, but the violation of such a rule is not
negligence in and of itself.” (internal quotation marks omitted)). We need not
assess whether Walker’s argument has merit, however, because it plainly ignores
the conspicuous fact that, as the district court
held, the record lacks evidence that Defendants’ omissions, even if negligent, were
a proximate cause of his injury. That is, as explained in the following discussion,
even if we assume arguendo that Defendants were negligent, we must affirm the
judgment to determine whether there is a genuine issue as to any material fact,“[w]e must view
all the evidence and all factual inferences reasonably drawn from that evidence in the light most
favorable to the nonmoving party—in this case, [Walker]—and we must resolve all reasonable
doubts about the facts in his favor.”
Id.
21
For example, Walker cites Rule 6.3.1 in the AAR’s 1996 Manual of Standards and
Recommended Practices, Section H – Part III, which states that “[b]ulkhead[] [doors] shall be
inspected and lubricated at one year intervals.”
13
district court’s summary judgment.
Negligence is not actionable under Georgia law unless that negligence was a
proximate cause of the plaintiff’s injury. See Anderson v. Barrow Cnty., 568
S.E.2d 68, 71 (Ga. Ct. App. 2002) (“[N]o matter how negligent a party may be, if
his act stands in no causal relation to the injury it is not actionable.” (quoting
Bacon v. Mayor & Alderman of City of Savannah,
525 S.E.2d 115, 117 (Ga. Ct.
App. 1999) (internal quotation marks omitted))); Davis v. Aiken,
142 S.E.2d 112,
115–16 (Ga. Ct. App. 1965) (“Negligence alone does not give a right of action to
an injured person against the negligent person unless the negligence be the
proximate cause of the injury and damage.”). Proximate causation reflects a
policy-based evaluation of whether the negligent defendant should be held legally
responsible for the plaintiff’s injury, or whether, instead, “the defendant’s conduct
and the plaintiff’s injury are too remote for the law to countenance recovery.”
Atlanta Obstetrics & Gynecology Grp., P.A. v. Coleman,
398 S.E.2d 16, 17 (Ga.
1990) (internal quotation mark omitted). It is “another way of saying . . . that the
defendant was under no duty to protect the plaintiff from the injury which in fact
occurred.” McAuley v. Wills,
303 S.E.2d 258, 261 (Ga. 1983) (citing William L.
Prosser, The Law of Torts 244 (4th ed. 1971)).
No universal formula governs proximate-cause analysis. Coleman, 398
14
S.E.2d at 17. Rather, it is a mixed question of law and fact “to be determined on
the facts of each case upon mixed considerations of logic, common sense, justice,
policy and precedent.”
Id. Typically, therefore, the inquiry is appropriately left to
the jury. See
id. (“[Determining] whether proximate cause exists . . . requires both
fact-finding in the ‘what happened’ sense, and an evaluation of whether the facts
measure up to the legal standard set by precedent. Ordinarily, both determinations
are most appropriately made by a jury upon appropriate instructions from the
judge.”). Yet, the question should be answered by the court as a matter of law “in
plain and undisputed cases,”
id. at 17–18, that is, in cases where “the evidence
shows clearly and palpably that the jury could reasonably draw but one conclusion,
that the defendant’s acts were not the proximate cause of the injury.” Atlanta Gas
Light Co. v. Gresham,
394 S.E.2d 345, 347 (Ga. 1990) (internal quotation mark
omitted). This is such a case.
Since Walker’s negligence claim proceeds on his theory that Defendants
breached duties to inspect and maintain the bulkhead door’s locking system, in
order to satisfy the proximate-cause element and survive summary judgment, there
must be evidence reasonably linking his injury to a discoverable and curable defect
in the door’s locking system. Cf. Ken Thomas of Ga., Inc. v. Halim, 597 S.E.2d
615, 618 (Ga. Ct. App. 2004) (holding, in part, that trial court erred in not granting
15
summary judgment to defendant car dealership in negligence lawsuit because
evidence did not support inference that plaintiff’s accident, resulting from steering
malfunction in car loaned by defendant, was proximately caused by defendant’s
negligent failure to repair or maintain car); Jordan v. Atlanta Replex Corp., 492
S.E.2d 536, 540 (Ga. Ct. App. 1997) (explaining that summary judgment is proper
in slip-and-fall cases alleging defendant’s negligent maintenance of premises if
plaintiff does not present evidence creating a material issues of fact as to whether a
defect caused fall and whether such defect was the consequence of defendant’s
breach of its duty to maintain premises);
Davis, 142 S.E.2d at 117–18 (explaining
that a plaintiff, to plead that defendant’s negligent failure to make an adequate
inspection was a proximate cause of plaintiff’s injury, must allege that a defective
condition existed that caused the injury and “that an inspection would have
discovered the defect”). That is, the evidence must indicate that: (1) at the time of
Walker’s injury, the door’s locking system was defective; (2) the defective
condition existed due to Defendants’ negligence; and (3) the defect resulted in
Walker’s injury.
The record evidence, however, does not reasonably connect Walker’s injury
to a defect in the door’s locking system birthed by any negligence on the part of
Defendants. None of the evidence in the record supports the accuracy of Walker’s
16
characterization of the locking system as a safety device that was intended to
reengage and halt the door’s movement when cargo—in this case, 18,000 pounds
or more of cargo—pushed the door rapidly forward along its tracks; nor does the
evidence suggest that the locking system was otherwise capable of functioning in
that way.22 Indeed, as recognized by the district court as well, the only evidence
that supported Walker’s impression of the locking system’s intended design was
the putative expert opinion of Micek, testimony that is properly no longer part of
the record because it is too speculative and unreliable. See Order 7, July 29, 2010
(“Micek testified that because the locking pins are spring-loaded, they are designed
as a ‘fail-safe safety device,’ but there is nothing in the record that supports his
opinion.” (emphasis added)). As a result, the sole reasonable inference to be drawn
from the evidence is that, under these facts, the locking system operated just as it
had been designed to.23 Thus, the locking system’s inability to stop the door’s
rapid charge cannot be attributed to a defect begot by Defendants’ negligent
omissions, since no frequency of inspection or maintenance would have enabled
22
For example, Norfolk Southern’s expert, Barry Harmon, testified that the company
that originally manufactured the interior bulkhead door did not designate the door’s locking
system as a safety mechanism. Harmon added that the locking pins were not shaped as, in his
opinion, he would expect them to be if they were designed to snap into the receptacles and stop
the door’s movement under such conditions.
23
Indeed, the record evidence suggests that the bulkhead door’s locking system was
intended only to ensure that the door would store cargo securely in place during loading,
transportation, and unloading of the railcar—a purpose it fulfilled here.
17
the locking system to do that which it could not do.24 Liability for Walker’s injury,
therefore, cannot be fairly traced to any negligence on Defendants’ part in failing
to annually inspect and maintain the door as required under the AAR rules and
guidelines. Cf. Henson v. Georgia-Pacific Corp., 658 S.E.2d 391, 394–95 (Ga. Ct.
App. 2008) (upholding summary judgment for defendant in premises-liability case
in which plaintiff alleged that the defendant negligently failed to maintain a freight
24
Micek stated that the only way in which Defendants could have determined whether
the door’s locking system could function under such conditions was by playing out the incident
beforehand. This, however, clearly would have been an unreasonable expectation to foist on
Defendants given that there is no evidence even suggesting that the locking system was intended
to function in that manner and, in turn, no reason for Defendants to have expected it would.
Instead, because the record evidence indicates that the bulkhead door’s locking system
was designed merely to store loaded cargo securely, a reasonable inspection would have assessed
the locking mechanism’s suitability for that purpose only. And such an inspection of the
bulkhead door and its locking system was performed—by Unilever, prior to loading the railcar
with the mayonnaise containers. Unilever’s inspection included: (1) testing the bulkhead doors
to make sure they moved along the tracks properly by pushing and pulling the bulkhead doors in
both directions; (2) assessing whether the tracks were broken, bent, or crooked in any way; (3)
checking the locking pins on the doors to ensure that they would lock when inserted into the top
and bottom track receptacles; and (4) analyzing the release latch to make certain it worked
correctly in retracting the locking pins—if the pins failed to release, then the bulkhead door
would have become immovable. This inspection closely tracked the AAR rules and guidelines.
For instance, Section II.A1 of AAR Pamphlet No. 17, which the AAR issued in October 1998,
provides that shippers like Unilever, in carrying out an inspection of bulkhead doors, must
inspect the[] doors to determine if they can be moved safely . . . then move doors
to approximately where they will be located under load. Engage the locking
mechanisms to make certain they are operational. Inspect for full extension of all
locking pins at the top and bottom of the bulkhead doors. Locking pins are to
penetrate the tracks at a minimum of 1/2".
No defects were revealed during Unilever’s inspection; had any been discovered, Unilever,
pursuant to company policies, would have rejected the railcar without loading it to prevent
possible damage to its product during transport.
18
elevator, the doors of which injured plaintiff, because plaintiff did not present any
competent evidence that elevator doors were actually defective at the time of his
injury); Davis,142 S.E.2d at 117–18 (“If the inspection would not have discovered
the defect, then the failure to inspect cannot be the proximate cause of any injury to
the plaintiff.”); see also, e.g., Mello v. K-Mart Corp., 792 F.2d 1228, 1233 (1st Cir.
1986) (stating that, under Tennessee products-liability law, even if defendant was
negligent in failing to test a product it offered for sale, “that negligence could not
have been the proximate cause of the plaintiffs’ injuries, because no amount of
testing would have weeded out what . . . was a non-defective” product (emphasis in
original)). To rule otherwise would require us to unreasonably draw unsupported
inferences as to how Defendants’ omissions could have caused Walker’s
accident.25 See Marshall v. City of Cape Coral,
797 F.2d 1555, 1559 (11th Cir.
25
For instance, Walker doggedly seeks to overcome his lack of evidence in support of
proximate causation by claiming that “common sense” weighs in his favor. He contends that it is
common knowledge that unlubricated metal may “seize up,” and thus that a jury could
reasonably infer that the bulkhead door’s locking pins, due to Defendants’ long-term neglect,
“seized up,” rendering them unable to reengage in the track receptacles and stop the door’s
charge. Walker’s contention, however, is misguided. Whether or not such knowledge of the
physics of metal is truly “common,” it is not a sound basis on which a jury could hold
Defendants liable, since there is no evidence that, under these facts, “un-seized up” locking pins
would have halted the door’s movement. Absent such evidence, a jury, to rule in Walker’s
favor, would have to rely impermissibly upon its own subjective conjecture—or what Walker
calls “common sense”—as to the locking pins’ ability to stop the door had the pins been better
lubricated; this we will not countenance. See Marshall v. City of Cape Coral, 797 F.2d 1555,
1559 (11th Cir. 1986); see also, e.g., Grinold v. Farist,
643 S.E.2d 253, 254 (Ga. Ct. App. 2007)
(“A mere possibility of such causation is not enough; and when the matter remains one of pure
speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of
19
1986) (stating that, although “[a]ll reasonable inferences arising from the evidence
must be resolved in favor of the non-movant, . . . inferences based upon
speculation are not reasonable” (citing Blackston v. Shook & Fletcher Insulation
Co., 764 F.2d 1480, 1482 (11th Cir. 1985)).
Based on the foregoing, the district court was correct in granting Defendants
summary judgment. Walker presented no evidence from which a jury could infer
that Defendants’ omissions, even if negligent, were a proximate cause of his injury,
an essential element of his negligence claim under Georgia law. See United States
v. Four Parcels of Real Prop., 941 F.2d 1428, 1438 (11th Cir. 1991) (“If the
nonmoving party fails to ‘make a sufficient showing on an essential element of her
case with respect to which she has the burden of proof,’ the moving party is
entitled to summary judgment.” (quoting Celotex Corp. v. Catrett,
477 U.S. 317,
323,
106 S. Ct. 2548, 2552,
91 L. Ed. 2d 265 (1986)). The district court’s
judgment is therefore
AFFIRMED.
the court to grant summary judgment for the defendant.”
20
