UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KERMIT R. MCGINNIS,
Plaintiff-Appellant,

v.                                                             No. 96-2571

CONSOLIDATED RAIL CORPORATION,
Defendant-Appellee.

KERMIT R. MCGINNIS,
Plaintiff-Appellee,

v.                                                             No. 97-1009

CONSOLIDATED RAIL CORPORATION,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CA-95-1397-L)

Argued: July 9, 1997

Decided: August 12, 1997

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge,
and BOYLE, United States District Judge for the
Eastern District of North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: G. Sander Davis, DAVIS & MYERS, Philadelphia, Penn-
sylvania, for Appellant. Frederick Lewis Kobb, WRIGHT, CONSTA-
BLE & SKEEN, L.L.P., Baltimore, Maryland, for Appellee. ON
BRIEF: James W. Constable, Tracey D. King, WRIGHT, CONSTA-
BLE & SKEEN, L.L.P., Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Plaintiff Kermit McGinnis appeals from the district court's grant of
summary judgment for defendant Consolidated Rail Corporation
("Conrail") in this action brought under both the Federal Employers'
Liability Act, 45 U.S.C. § 51 et seq. (FELA) and the Federal Safety
Appliance Act, 45 U.S.C. § 1 et seq. (FSAA). Reviewing the district
court's grant of summary judgment de novo, Wagner v. Wheeler, 

, 90 (4th Cir. 1993), we affirm.

I.

Kermit McGinnis was a train brakeman for Conrail. On December
10, 1993, McGinnis, along with an engineer and a conductor, were
trying to move 16 freight cars from one track to another. The engineer
was driving an engine car, the engine car was connected to a cabin
car, and the cabin car was in turn connected to a string of 16 freight
cars. McGinnis and the conductor were riding in the back of the train.

While the freight cars were being pulled, the air in the train's brak-
ing system was flowing from the engine to the cabin, but there was
no air flowing to the remaining 16 freight cars. This meant that the
brakes in the engine and cabin cars were operational, while the

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remaining brakes were inoperative. When the train stopped, McGinnis
walked to the connection between the cabin and the first freight car
in order to open the valve and permit air to fill the remaining brakes.
When trains stop, there is normally some "slack action" which causes
the cars without operational brakes to move back and forth due to
momentum. After waiting some unknown period of time for the slack
action to stop, McGinnis went in between the cabin car and the first
freight car and attempted to turn on the air. While leaning over the
coupler that connected the cabin and the freight car, McGinnis lost his
balance and grabbed the coupler. The coupler moved and crushed his
hand.

McGinnis brought suit for money damages against Conrail alleging
first, that Conrail breached its duty of care under FELA by using a
defective coupler and by disregarding its own safety regulations
whose enforcement would have prevented plaintiff's injury, and sec-
ond, that Conrail was strictly liable under the FSAA for employing
a defective coupling mechanism. The district court granted defen-
dant's motion for summary judgment on both causes of action, hold-
ing that there was no evidence that the coupler movement was due to
any negligence or defect in the mechanism, and that there was no evi-
dence that defendant's safety regulations -- if enforced -- would
have prevented plaintiff's injury.

II.

We hold that summary judgment for Conrail on plaintiff's FELA
claims was proper because plaintiff cannot point to any evidence in
the record that any alleged negligence by Conrail caused plaintiff's
injury. Although a FELA plaintiff may defeat summary judgment by
meeting the "most lenient" burden, see Brown v. Baltimore & O.
Railroad, 

, 1137 (4th Cir. 1986), the plaintiff must
nonetheless create a genuine issue of material fact to support all of the
elements of his cause of action. Based on our review of the record in
this case, we conclude that appellant cannot satisfy this burden. We
examine in order each of appellant's four possible theories of recov-
ery under FELA.

Appellant's first theory of recovery is that Conrail was negligent
for using a defective coupler. The district court granted summary

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judgment for Conrail on this theory based upon the testimony of a
safety inspector that the coupler was not defective. Appellant con-
tends that this was error and that he has created an issue of material
fact on his negligence theory by submitting affidavits of several Con-
rail employees who claim to have overheard the safety inspector men-
tion that the coupler was in fact defective. We need not decide
whether appellant's affidavits create an issue of fact regarding Con-
rail's negligence; even if Conrail did negligently maintain a defective
coupler, appellant cannot establish that that defect caused his injury.
In particular, because the inspector denies admitting to the alleged
coupler defect, and because appellant's witnesses can do no more
than testify that they overheard the safety inspector refer to the cou-
pler as "defective," appellant cannot point to any evidence of the type
of defect to which the inspector admitted, nor can he point to any evi-
dence tending to establish that that particular defect caused his injury.
Summary judgment is therefore appropriate because appellant has not
created a genuine issue as to the fact that this alleged negligence
caused his injury.

Appellant's second theory of recovery is that Conrail's negligent
failure to enforce its "three point protection" safety regulation caused
his injury. The "three point protection" plan is a three-step Conrail
safety regulation designed to prevent train cars from moving while
men are working on them. Appellant has presented evidence that
Conrail knew that its employees were routinely ignoring the three
point plan, and thus appellant may have created a jury question on
Conrail's negligence under this theory. To defeat summary judgment,
however, appellant must establish that the three point plan, if fol-
lowed, would have prevented appellant's particular injury. Because
the first step in the three point procedure is to apply the air brakes,
and because McGinnis was injured in the process of activating the
freight car brakes, the three point procedure could have prevented his
injury only if the injury resulted from movement in the cabin car or
engine (the only two cars with functioning brakes). Appellant con-
cedes that he did not see the engine or cabin car move at the time of
his injury, and affidavits of the only two eyewitnesses indicate that
the cabin and engine cars remained stationary. Thus, appellant cannot
point to any evidence in the record sufficient to create a genuine issue
that Conrail's failure to enforce its "three point protection" regulation
caused his injury.

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Appellant's third theory of recovery is that Conrail negligently
failed to enforce other (i.e. non-three-point-protection) safety regula-
tions, including a regulation that forbade trainmen from leaning over
couplers while activating the air brakes. We hold that appellant may
not raise this theory of recovery in this court because it was waived
in the district court below. This argument was never mentioned by
appellant in his opposition to summary judgment; it was never men-
tioned by appellant in discovery or answers to interrogatories (even
though Conrail tried to elicit all of plaintiff's theories); and it was not
mentioned in appellant's original complaint. Appellant contends that
it did not waive this argument because it argued below that Conrail
negligently violated a safety regulation, namely the three point pro-
tection regulation. We conclude, however, that the argument that
Conrail failed to enforce different safety regulations raises a different
issue because it is based upon a different theory of negligence. There-
fore, appellant has waived its theory based upon Conrail's alleged
failure to enforce these particular safety regulations. This conclusion
seems particularly appropriate in light of the number of safety regula-
tions a large corporation like Conrail is likely to have in place.* Thus,
were we to consider appellant's third theory of recovery, we would
would run afoul of the general rule against consideration of issues
raised for the first time on appeal. Muth v. United States, 

,
250 (4th Cir. 1993) (refusing to reverse summary judgment for defen-
dant on the basis of an issue raised for the first time on appeal). While
appellant asks that we excuse his waiver in order to avoid "plain
error" or a "miscarriage of justice," we decline to invoke those narrow
exceptions to the waiver rule, where, as here, appellant waived an
ordinary negligence theory, and did so simply as a result of mere
inaction.

Appellant's final theory of recovery is that Conrail's negligence
should be inferred under the doctrine of res ipsa loquitur. The doc-
trine of res ipsa loquitur may be applied in FELA cases, so long as
three conditions are satisfied: "(1) the injury for which the plaintiff
seeks recovery must be of a kind that ordinarily does not occur in the
_________________________________________________________________
*Although we are unable to tell from the record how many safety reg-
ulations Conrail actually has in place, we note that appellant alleges that
Conrail negligently failed to enforce safety regulations numbered
1715(g), 1709, and 1721.

                     5
absence of negligence; (2) the injury must have been caused by some
agency or instrumentality within the exclusive control of the defen-
dant; and (3) the injury must not have been due to any contribution
or voluntary activity on the part of the plaintiff." Stillman v. Norfolk
& Western Railway Co., 

(4th Cir. 1987). Based upon
our review of the record in this case, we reject appellant's contention
that res ipsa loquitur be applied, because appellant cannot satisfy the
third requirement. McGinnis concedes that he sustained his injury
while he was reaching over and leaning against the coupler mecha-
nism. This clearly constitutes "contribution or voluntary activity" by
him. Appellant responds that Conrail is also negligent because, if it
had enforced its safety regulations, McGinnis might not have reached
over and leaned against the coupler. Even assuming for the sake of
argument, however, that Conrail was partially at fault for failing to
enforce its safety regulations, appellant still cannot defeat summary
judgment because he does not deny that his injury was caused by "any
contribution or voluntary activity," namely, his arguably negligent act
of reaching over and leaning against the coupler.

III.

Under the FSAA, railroads are strictly liable for injuries to their
workers caused by prohibited defects in covered"safety appliances."
A coupling mechanism is a "safety appliance" within the meaning of
the FSAA. 49 U.S.C. § 20302. Not all coupler defects are prohibited
by the FSAA, however, and we hold that appellant's alleged defect
-- whatever it may be -- is not covered by the FSAA because, as
appellant concedes, it is not a defect affecting the ability of the cou-
pler device automatically to couple and uncouple or remain coupled.
See 49 U.S.C. § 20302 (1997) (requiring couplers to couple and
decouple automatically). See also O'Donnell v. Elgin, 

(1949) (holding that FSAA requires that couplers remain coupled).
Thus, the district court properly entered summary judgment for Con-
rail on appellant's FSAA claim.

CONCLUSION

For the reasons stated herein, the judgment of the district court is
affirmed.

AFFIRMED

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