09-2548-cv
Lyman v. CSX Transp., Inc.


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH TH IS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 8 th day of February , two thousand ten.

PRESENT:            GUIDO CALABRESI,
                    REENA RAGGI,
                    RICHARD D. CUDAHY,*
                             Circuit Judges.

-----------------------------------------------------------------------------------
ARTHUR J. LYMAN,
                                                   Plaintiff-Appellant,
                               v.                                                     No. 09-2548-cv

CSX TRANSPORTATION, INC.,
                                                   Defendant-Appellee.
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APPEARING FOR APPELLANT:                                      MARY E. DIXON, White and Williams LLP,
                                                              Philadelphia, Pennsylvania.

APPEARING FOR APPELLEE:                                       DAN HIM M ELFARB, M ayer Brown LLP,
                                                              Washington, D.C. (Melanie Wilson Rughani,
                                                              Mayer Brown LLP, Washington, D.C., Scott A.
                                                              Barbour, Matthew P. Barry, McNamee, Lochner,


          *
        Circuit Judge Richard D. Cudahy of the United States Court of Appeals for the
Seventh Circuit, sitting by designation.
                                             Titus & Williams, P.C., Albany, New York, on
                                             the brief).

       Appeal from the United States District Court for the Northern District of New York

(David N. Hurd, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on May 22, 2009, is AFFIRMED.

       Plaintiff Arthur J. Lyman, a stevedore, appeals an award of summary judgment in

favor of his employer CSX Transportation, Inc. (“CSXT”), on Lyman’s Federal Employers’

Liability Act (“FELA”) claim, 45 U.S.C. § 51 et seq., for negligent failure to provide a safe

work environment, causing him to suffer a bruised knee. Our standard of review is de novo,

see Ollman v. Special Bd. of Adjustment No. 1063, 527 F.3d 239, 245 (2d Cir. 2008), and

we will affirm only if the record, viewed in the light most favorable to Lyman, reveals no

genuine issue of material fact, see Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986). We assume the parties’ familiarity with the facts and record

of prior proceedings, which we reference only as necessary to explain our decision to affirm.

       1.      FELA

       FELA provides, in pertinent part, that “[e]very common carrier by railroad . . . shall

be liable in damages to any person suffering injury while he is employed by such carrier . . .

for such injury or death resulting in whole or in part from the negligence of . . . such carrier.”

45 U.S.C. § 51. We have held that FELA adopts a relaxed standard for both negligence and



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causation, see Williams v. Long Island R.R., 196 F.3d 402, 406 (2d Cir. 1999); Ulfik v.

Metro-North Commuter R.R., 77 F.3d 54, 58 & n.1 (2d Cir. 1996), and that “[t]he right of

the jury to decide issues of fact should . . . be liberally construed,” Ulfik v. Metro-North

Commuter R.R., 77 F.3d at 58. Nevertheless, “FELA is not a strict liability statute.”

Williams v. Long Island R.R., 196 F.3d at 406. “Claimants must at least offer some evidence

that would support a finding of negligence.” O’Hara v. Long Island R.R., 665 F.2d 8, 9 (2d

Cir. 1981).

       2.     CSXT’s Alleged Negligent Failure To Warn of License Plate Holder

       Plaintiff asserts that CSXT negligently failed to provide a safe work environment

because it did not inspect the vehicle at issue and warn employees of the risks presented by

license plate holders such as the one on which plaintiff bruised his knee. “Reasonable care

is determined in light of whether or not a particular danger was foreseeable.” Syverson v.

Consol. Rail Corp., 19 F.3d 824, 826 (2d Cir. 1994) (citing Gallick v. Baltimore & Ohio

R.R., 372 U.S. 108, 117 (1963)). In Syverson, we allowed a negligence claim to go forward

because the employer had received complaints about the alleged hazard and another

employee had suffered injury in the past. 19 F.3d at 827. In this case, plaintiff adduced no

evidence indicating that CSXT knew or should have known that license plate holders posed

a risk to workers or even that one was affixed to the vehicle in question. See Higgins v.

Metro-North R.R., 318 F.3d 422, 427 (2d Cir. 2003) (holding that plaintiff who fails to

demonstrate employer’s awareness of any particular threat posed by circumstance at issue

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cannot prove negligence); Gallose v. Long Island R.R., 878 F.2d 80, 85 (2d Cir. 1989) (“The

catalyst which ignites th[e] duty is knowledge, either actual or constructive.”). Nor has

plaintiff adduced any evidence suggesting that it would have been reasonable or beneficial

for CSXT to undertake a program of inspection that might have revealed the challenged

license plate holder when employees, including plaintiff, already knew that some vehicles

were equipped with such fixtures. Accordingly, like the district court, we conclude that

plaintiff has not adduced sufficient evidence to permit a jury finding that CSXT was

negligent in failing to warn him of the complained-of license plate holder.

       3.     CSXT’s Alleged Negligence Regarding Chock Straps and Lighting

       Plaintiff also contends that his workplace was unsafe because (a) the Nissan vehicle

that allegedly injured him was “over-restrained,” such that it inched forward when plaintiff

removed the chock straps securing it, Appellant’s Br. at 28, and (b) it was too dark for him

to see the license plate holder. The district court noted that these claims “need not be

considered” because plaintiff raised them for the first time in opposition to summary

judgment. Hr’g Tr. at 16. We agree with the district court. See Greenidge v. Allstate Ins.

Co., 446 F.3d 356, 361 (2d Cir. 2006) (declining to reach merits of argument raised for first

time in opposition to summary judgment); Syracuse Broad. Corp. v. Newhouse, 236 F.2d

522, 525 (2d Cir. 1956) (holding that district court was “justified” in “brush[ing] aside”

further argument not alleged in complaint but raised for first time in opposition to summary

judgment); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and

                                             4
Procedure § 1183, at 23 n.9 (3d ed. 2004) (“An opposition to a summary judgment motion

is not the place for a plaintiff to raise new claims.”).

       Plaintiff submits that his general complaint that “the defendant railroad negligently,

recklessly and carelessly failed to provide plaintiff with a reasonably safe place to work” and

“negligently, recklessly and carelessly assigned the plaintiff to work in dangerous or

hazardous conditions” sufficiently raises these claims. Compl. ¶ 8. Further, plaintiff

contends that his answers to defendant’s interrogatories alerted CSXT to his complaint that

the strap tension was too tight and that the work environment was too dark. We have

reviewed plaintiff’s complaint and interrogatory response, and we conclude that they were

insufficient to put defendant on notice of plaintiff’s new negligence claims. See Greenidge

v. Allstate Ins. Co., 446 F.3d at 361 (“[T]he central purpose of a complaint is to provide the

defendant with notice of the claims asserted against it . . . .”). While plaintiff’s interrogatory

answers contained a brief reference to the fact that “[t]he particular automobile . . . was

strapped down very tightly,” Pl.’s Answers to Interogs. ¶ 17, they clearly attributed

defendant’s negligence to the challenged license plate holders, see id. ¶¶ 18 (“The defendant

failed to notify its employees . . . that the cars on the autorack rail car had license plate

brackets mounted to the front bumpers, which condition reduced the amount of distance

between the cars on autorack rail cars and created a hazardous condition.”), 19 (“The

defendant should have had regulations and/or policies in place to warn its employees of the

dangerous condition created by the existence of license plate brackets on cars loaded on

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autorack rail cars.”), 21 (“The license plate bracket was unusual and the plaintiff would not

have been injured had it not been mounted on the front of the vehicle he was working with

at the time.”). Finally, we note that plaintiff could have sought leave to amend his complaint,

but did not do so. Accordingly, we cannot conclude that the district court abused its

discretion in failing to consider plaintiff’s new theories of liability. See Greenidge v. Allstate

Ins. Co., 446 F.3d at 361 (“[A] district court does not abuse its discretion when it fails to

grant leave to amend a complaint without being asked to do so.”).

       We have considered plaintiff’s other arguments on appeal and conclude that they lack

merit. Accordingly, we AFFIRM the judgment of the district court.

                              FOR THE COURT:
                              CATHERINE O’HAGAN WOLFE, Clerk of Court




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