[Cite as Wilson v. CSX Transp., Inc., 2025-Ohio-819.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
EDWARD M. WILSON, : APPEAL NO. C-240284 TRIAL NO. A-2202320 Plaintiff-Appellant, :
vs. : OPINION CSX TRANSPORTATION, INC., :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: March 12, 2025
Daniel J. McCarthy and Thomas J. Joyce, III, for Plaintiff-Appellant,
Shumaker, Loop & Kendrick, LLP, and James R. Carnes, for Defendant-Appellee. [Cite as Wilson v. CSX Transp., Inc., 2025-Ohio-819.]
CROUSE, Judge.
{¶1} For decades, plaintiff-appellant Edward M. Wilson repaired tracks for
defendant-appellee CSX Transportation, Inc. (“CSX”), a railroad company. The work
was hard, and Wilson contends that CSX made it harder by failing to provide him with
adequate equipment and assistance. After undergoing surgery and treatment for
degenerative knee and spinal injuries and taking disability retirement, Wilson sought
relief under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. 51 et seq., which
permits railroad employees to recover for injuries caused by the negligence of their
employers. Wilson contends that CSX’s negligence caused him to suffer cumulative
traumatic injuries to his knees and back over a period spanning years, as well as two
acute traumatic injuries in 2012 and 2013. The trial court, however, determined that
Wilson had not introduced evidence sufficient to raise a jury question on any of his
claims and entered summary judgment for CSX.
{¶2} For the reasons set forth below, we agree that CSX was entitled to
summary judgment with respect to Wilson’s two acute-traumatic-injury claims.
Unlike the trial court, however, we hold that Wilson did introduce evidence from
which a jury could conclude (1) that CSX was negligent in failing to furnish Wilson
with certain equipment, and (2) that CSX’s failure in this regard played some part in
causing or aggravating Wilson’s degenerative knee and spinal conditions. We
therefore reverse the trial court’s summary judgment with respect to those issues and
remand the cause so that Wilson may proceed to trial on his cumulative-traumatic-
injury claim under that theory.
I. BACKGROUND
{¶3} Wilson worked for CSX and its predecessor—both railroad companies—
from 1978 to 2014. He spent the first two of those years working as a “trackman” (i.e., OHIO FIRST DISTRICT COURT OF APPEALS
a track repairperson) before working as a welder helper and then as a track welder
from 1980 on.
{¶4} Wilson’s jobs with CSX involved intensive manual labor, including
repeated lifting, squatting, and carrying heavy objects. Wilson testified in a deposition
that the strain of these tasks was amplified by CSX’s failure to furnish him with
requested tools or to repair those he already had. For example, Wilson contended in
his deposition testimony that he was given a new truck in 2009, but that “the boom on
the truck”—i.e., the mounted crane used to lift heavy objects—“didn’t work half the
time.”1 Wilson testified that, on the frequent occasions when such equipment was
broken, he was forced to lift items of up to 100 pounds into and out of his truck bed.
Wilson testified that he had reported his equipment issues to CSX, but to no avail.
{¶5} Wilson further testified that the strain on his body was amplified by the
inadequate assistance of his assigned welder helper, Teddy. During “the last six, seven
years” of his time at CSX, Wilson testified, Teddy had been his welder helper “almost
half the time.” But Teddy, Wilson said, “was just a terrible helper.” Wilson testified,
for example, that “Teddy never did help [Wilson] pick up that surface grinder unless a
boss was in front of him.” Wilson testified that he had made his issues with Teddy
known to his supervisors at a meeting a few months before his disability retirement.
{¶6} Throughout his years working on the railroad, Wilson incurred
numerous injuries. Prior to 2012, Wilson generally reported these injuries to his
employer. In many of the reported cases, Wilson and his employer reached settlement
agreements that provided Wilson with compensation.
1 In the same deposition passages addressing his boom issues, Wilson also testified about a broken
“Tommy gate” on his truck. His briefs to this court, however, have discussed only the boom issue, and make no mention of the “Tommy gate.” We therefore address only the broken boom.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} After 2012, Wilson contends he suffered two injuries, which he did not
report. These injuries are the basis for two of Wilson’s claims in this case.
{¶8} While working on November 20, 2012, Wilson put a pair of joint bars in
the bed of his work truck. (Joint bars are the large metal pieces that serve to connect
one piece of metal rail on a railroad track to the next.) While Wilson testified that some
of his coworkers’ work trucks had storage racks for securing such bars, Wilson’s work
truck did not. When Wilson climbed into the bed of his truck to change the gauge on
his oxygen tank for his welding equipment, he tripped over the bars, fell, and felt pain
in his right knee. Wilson did not report the injury to CSX initially. When Wilson went
to an orthopedic surgeon, Dr. Larkin, over a week later, he told the doctor that he had
injured his knee working in his garage. Wilson later testified that he had hidden the
work-related cause of his injury from CSX and his doctor because he had feared
retaliation from his employer.
{¶9} Wilson returned to work and, on January 24, 2013, was sent out to make
a weld on a section of rail. The portion of rail Wilson was to weld was on top of a tie—
one of the wood pieces set in the ground every couple of feet, underneath and
perpendicular to the metal rails of a railroad. The foreman apparently had concerns
about the placement, and so pulled the tie part of the way out from under the rail. This
left a hole in the ground where the tie had been, which Wilson estimated was around
18 inches deep. To make his weld, Wilson had to get under and/or on top of the rail,
which, in turn, required crouching, kneeling, standing, and climbing into and out of
the hole. At some point, Wilson “felt something in [his] knee again.” Nevertheless,
Wilson finished the job, and “went on home hurting.” The next day, Wilson’s knee “just
went out all the way.” Again Wilson testified that he did not report the injury to CSX
and again lied to his doctor about the triggering event.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} Wilson underwent a right knee replacement in March 2013. Following
the procedure, Wilson returned to work for a five-month period, before being taken
out of service in January 2014. During his return, Wilson began to develop back and
neck pain.
{¶11} Wilson took disability retirement in May 2014. Then, in June 2022, he
filed a complaint against CSX in the Hamilton County Court of Common Pleas,
asserting three FELA claims.2 Following the close of discovery, CSX moved for
summary judgment. The record for summary judgment contained not only the two
depositions of Wilson and Wilson’s medical records, but also affidavits from two of his
treating physicians, Dr. Larkin and Dr. Kakarlapudi, and a “Safety Analysis & Expert
Report” regarding conditions at CSX, authored by Peter F. Kelly, a certified safety
professional. The trial court granted summary judgment for CSX on all claims, from
which Wilson took this timely appeal.
II. ANALYSIS
{¶12} On appeal, Wilson raises a single assignment of error: that the trial court
should not have granted summary judgment to CSX on his claims under FELA.
{¶13} Congress enacted FELA in 1906 “to provide a federal remedy for
railroad workers who suffer personal injuries as a result of the negligence of their
2 Wilson initially filed his complaint against CSX in Pennsylvania’s Philadelphia County Court of
Common Pleas in 2015. See Wilson v. CSX Transportation, Inc., Philadelphia, Penn., C.P. No. 151102678 (Nov. 18, 2015). CSX moved for dismissal on the grounds of forum non conveniens, which was denied. Id. An appellate court reversed this denial, but no stipulated dismissal was entered on the Pennsylvania trial court’s docket at first. On February 5, 2020, the Pennsylvania court administratively dismissed the action. Wilson filed a complaint in the Hamilton County, Ohio, Court of Common Pleas in January 2021. See Complaint, Wilson v. CSX Transportation, Inc., Hamilton C.P. No. A-2100375 (Jan. 29, 2021). Due to confusion or complications regarding the dismissal of the Pennsylvania case and the statute of limitations, Wilson dismissed his Ohio complaint without prejudice in May 2022. See Notice of Dismissal, Wilson, Hamilton C.P. No. A- 2100375 (May 31, 2022). But, while this was happening, the administrative dismissal in Philadelphia was vacated, and a new stipulated dismissal was entered on April 5, 2022. New stipulation in hand, Wilson refiled his complaint in the instant action on June 28, 2022.
5 OHIO FIRST DISTRICT COURT OF APPEALS
employer or their fellow employees.” (Footnotes omitted.) Atchison, Topeka & Santa
Fe Ry. Co. v. Buell, 480 U.S. 557, 561 (1987). To effectuate its remedial purpose,
FELA’s coverage “is defined in broad language, which has been construed even more
broadly.” Id. at 561-562.
{¶14} At the heart of FELA is a straightforward instruction imposing federal
liability upon certain railroads:
Every common carrier by railroad while engaging in commerce between
any of the several States . . . shall be liable in damages to any person
suffering injury while he is employed by such carrier in such commerce
. . . for such injury or death resulting in whole or in part from the
negligence of any of the officers, agents, or employees of such carrier, or
by reason of any defect or insufficiency, due to its negligence, in its cars,
engines, appliances, machinery, track, roadbed, works, boats, wharves,
or other equipment.
45 U.S.C. 51. Put simply, “FELA renders railroads liable for employees’ injuries or
deaths ‘resulting in whole or in part from [carrier] negligence.’” (Bracketed text in
original.) CSX Transp., Inc. v. McBride, 564 U.S. 685, 688 (2011), quoting 45 U.S.C.
51.
{¶15} FELA incorporates numerous concepts familiar from common-law
negligence actions. To “prevail on a FELA claim, a plaintiff must prove the traditional
common law elements of negligence: duty, breach, foreseeability, and causation.”
(Cleaned up.) Vance v. Consol. Rail Corp., 73 Ohio St.3d 222, 230 (1995). But rather
than incorporate the negligence law of any particular state to define these elements,
FELA comes with its own federal rules of decision and decisional law, so that “‘[s]tate
laws are not controlling in determining what the incidents of this federal right shall
6 OHIO FIRST DISTRICT COURT OF APPEALS
be.’” Hess v. Norfolk S. Ry., 2005-Ohio-5408, ¶ 18, quoting Dice v. Akron, Canton &
Youngstown RR. Co., 342 U.S. 359, 361 (1952).
{¶16} For example, the “foreseeability” component of a FELA claim does not
translate to common-law “proximate cause.” In FELA actions, foreseeability only
factors into defining whether the railroad has breached its duty to its employee. Thus,
in resolving whether an employer has “fail[ed] to observe that degree of care which
people of ordinary prudence and sagacity would use under the same or similar
circumstances,” a court or jury should consider “what a reasonably prudent person
would anticipate as resulting from a particular condition.” Gallick v. Baltimore & Ohio
RR. Co., 372 U.S. 108, 118 (1963).
{¶17} The text of FELA supplies a causation standard more liberal than the
common law. If an employer has breached its duty under the act by failing to take such
care, and if that negligent conduct “is shown to have played any part, even the
slightest, in producing the injury, then the carrier is answerable in damages even if
the extent of the injury or the manner in which it occurred was not probable or
foreseeable.” (Cleaned up.) (Emphasis sic.) McBride, 564 U.S. at 703-704; see also
Rogers v. Missouri Pacific RR. Co., 352 U.S. 500, 506 (1957). The imposition of any
further proximate-cause requirement drawn from the common law is inconsistent
with FELA’s “text and purpose.” McBride at 688. Thus, “[j]udicial appraisal of the
proofs [in a FELA action] to determine whether a jury question is presented is
narrowly limited to the single inquiry whether, with reason, the conclusion may be
drawn that negligence of the employer played any part at all in the injury or death.”
Rogers at 506-507.
{¶18} In this appeal, Wilson contends that the trial court erred by granting
CSX summary judgment on his three FELA claims. The first claim in Wilson’s
7 OHIO FIRST DISTRICT COURT OF APPEALS
complaint alleged that CSX’s negligence caused him to suffer a cumulative traumatic
injury. The second alleged that CSX’s negligence caused him to suffer an acute
traumatic injury when, on November 20, 2012, he tripped on a joint bar in the bed of
his truck. And Wilson’s third claim alleged that CSX’s negligence caused him to suffer
another acute traumatic injury on January 24, 2014, when he twisted his knee while
working on a welding job from inside an 18-inch hole. These three claims correspond
to the three issues presented by Wilson for review under his assignment of error.
A. Standard of Review
{¶19} Though they are governed by federal substantive law, “[g]enerally,
‘FELA cases adjudicated in state courts are subject to state procedural rules.’” Vance,
73 Ohio St.3d at 227, quoting St. Louis S.W. Ry. Co. v. Dickerson, 470 U.S. 409, 411
(1985); accord Miller v. CSX Transp., Inc., 2007-Ohio-5470, ¶ 7 (6th Dist.). “Thus, we
look to Ohio’s rules regarding summary judgment” in considering Wilson’s FELA
claims, while applying “the liberal standard of negligence under the statute.” Maret v.
CSX Transp., 130 Ohio App.3d 816, 820-821 (1st Dist. 1998).
{¶20} “When reviewing the decision of a trial court granting or denying a
party’s motion for summary judgment, an appellate court applies a de novo standard
of review.” Smathers v. Glass, 2022-Ohio-4595, ¶ 30, citing A.J.R. v. Lute,
2020-Ohio-5168, ¶ 15. A court may award summary judgment to a moving party who
can show (1) “that there is no genuine issue as to any material fact,” (2) “that the
moving party is entitled to judgment as a matter of law,” and (3) that “it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to” the
nonmoving party. Civ.R. 56(C); accord Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,
105 (1996).
8 OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} Ohio courts determine whether these criteria are met by applying a
burden-shifting framework. First, the moving party must “inform[] the trial court of
the basis for the party’s motion and identify[] those portions of the record that
demonstrate the absence of a genuine issue of material fact on the essential elements
of the nonmoving party’s claim.” Midland Credit Mgt., Inc. v. Naber,
2024-Ohio-1028, ¶ 6 (1st Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).
Once the moving party has cleared this hurdle, the burden shifts to the nonmoving
party to identify “specific facts showing that there is a genuine issue for trial,” Civ.R.
56(C), which must be based on more than “unsupported allegations or the pleadings.”
Smathers at ¶ 31, citing Lute at ¶ 26. Only if the nonmoving party fails to meet this
second requirement is summary judgment appropriate under Civ.R. 56.
B. Cumulative-Traumatic-Injury Claim
{¶22} In the first count of his complaint, Wilson alleged that “over the course
of his career with [CSX], [Wilson] developed injuries to his bilateral knees, low back
and neck,” which he alleged were “caused, contributed to and/or aggravated,
worsened, exacerbated, in whole or in part, by the negligence” of CSX. His complaint
also offered several theories as to how CSX had negligently caused his injuries. Wilson
now appeals the trial court’s summary judgment for CSX on this claim.
{¶23} There is no per se bar on cumulative-injury claims under FELA. The
Sixth Circuit has considered and permitted multiple cases to go to a jury on theories
that carriers contributed to employees’ long-term, cumulative harms, like carpal
tunnel syndrome, by regularly requiring them to employ some ergonomically deficient
tool or perform some ergonomically problematic task. See, e.g., Aparicio v. Norfolk &
W. Ry., 84 F.3d 803, 812 (6th Cir. 1996) (reversing judgment as a matter of law
because railroad could have foreseen that plaintiff’s “job duties put him at risk for
9 OHIO FIRST DISTRICT COURT OF APPEALS
developing a cumulative trauma disorder such a[s] carpal tunnel syndrome”);
Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255 (6th Cir. 2001) (reversing summary
judgment for railroad on plaintiff’s claim that railroad’s negligence contributed to his
carpal tunnel syndrome). And the United States Supreme Court, over 75 years ago,
approved a cumulative-injury claim brought by an employee who asserted that years-
long workplace exposure caused him to contract silicosis. Urie v. Thompson, 337 U.S.
163 (1949).
{¶24} But cumulative-injury claims are no different from other FELA claims—
the plaintiff must still show (1) that the defendant-railroad behaved negligently by
breaching its duty of care, and (2) that said “employer negligence played any part, even
the slightest, in producing the injury or death for which damages are sought.” Rogers,
352 U.S. at 506. Thus, the question in this appeal is whether, on the summary-
judgment record before us, evidence exists to support the conclusion that (1) CSX
failed to take the actions of a reasonably prudent employer under the circumstances,
and (2) the identified transgression was a cause, no matter how slight, of Wilson’s
complained-of cumulative-trauma injuries.
{¶25} To support the cumulative-trauma claim, Wilson argues that CSX was
negligent in essentially three ways: (1) by failing to furnish him with adequate
equipment, (2) by failing to provide him with adequate assistance, (3) by failing to
perform risk assessments and offer adequate trainings or warnings to address the risks
of Wilson’s day-to-day job activities.
1. Failure to Provide Adequate Equipment
{¶26} In support of his first theory, Wilson points to his deposition testimony
regarding the nonfunctioning boom (crane) on his work truck. Wilson contends, and
his testimony supports, that the boom was meant “to assist him moving and operating
10 OHIO FIRST DISTRICT COURT OF APPEALS
heavy equipment.” For example, Wilson’s testimony suggests that workers would use
the boom to lift oxygen tanks into and out of the beds of their work trucks. In his
deposition, Wilson estimated that such tanks were “about 5 feet 5” and “weigh[ed]
right at a hundred pounds, if not over.” Hence, when welders needed to place the
oxygen tanks into their trucks, they used their booms. In fact, Wilson testified that
CSX had trained him to use his boom to lift such heavy objects.
{¶27} But Wilson testified that the boom on his truck “didn’t work half the
time.” Because his boom would “quit working” and “break down on [him]” as he tried
to use it to lift objects, Wilson felt he “couldn’t trust it.” Wilson asserted that booms
had been a problem on all the trucks CSX had provided him.
{¶28} When stuck with “a boom that wouldn’t work,” Wilson testified that he
and his helper were forced to lift the oxygen tanks and other heavy equipment into the
truck bed by hand. With respect to the oxygen tanks in particular, Wilson testified that
one person “would get up in the truck and pull on the top of the tanks,” while the other
would remain on the ground to “help boost them up.” Wilson testified that he believed
that the strain required “to put those [oxygen] tanks on the back of the pickup truck
by hand” wore on his body and contributed to his injuries.
{¶29} Wilson testified that he complained to his supervisors about his need
for adequate equipment. Yet, Wilson testified, he continued to have problems with his
boom.
{¶30} Contrary to the trial court’s conclusion, we hold that the foregoing
testimony constituted sufficient evidence from which a jury could conclude that CSX
had been negligent in failing to provide Wilson with a working boom. Wilson was given
booms on his trucks “from day one,” and CSX trained him to use those booms to lift
heavy objects into the truck bed. The universality of this piece of equipment, along
11 OHIO FIRST DISTRICT COURT OF APPEALS
with the training regarding its use, suggest that even CSX viewed the boom as essential
to the safe performance of Wilson’s job.
{¶31} Yet Wilson testified his boom frequently failed him, and that, despite
complaints, CSX failed to provide him with a consistently working boom. As a result,
he was forced to engage in activities that were obviously strenuous—including lifting
100-pound oxygen tanks into a truck bed. If a jury believed Wilson, it could reasonably
find that, by failing to repair the boom and leaving Wilson and his helper to lift such
items manually, CSX had breached its duty to provide Wilson with the equipment
necessary to perform his work tasks safely.
{¶32} Wilson also provided evidence from which a jury could conclude that
the malfunctioning boom “played any part, even the slightest, in producing [his]
injury.” (Cleaned up.) See McBride, 564 U.S. at 703. In support of his response
opposing CSX’s motion for summary judgment, Wilson submitted affidavits from two
of his treating physicians: Drs. Larkin and Kakarlapudi. Dr. Larkin, who performed
Wilson’s knee operations in 2013, averred that he believed, to “a reasonable degree of
medical certainty,” that “Wilson’s excessive physical labor at the railroad was a
contributing factor in the development of his right knee degenerative joint disease,”
and that it “aggravated and worsened” that condition. Dr. Kakarlapudi, who
performed procedures on Wilson’s neck and back in 2014, likewise averred that
“excessive physical labor at the railroad” had contributed to, aggravated, and
worsened Wilson’s “cervical degenerative disc disease.”
{¶33} These affidavits were sufficient to create a genuine dispute as to whether
the physical burden imposed by having to lift 100-pound tanks “played a part—no
matter how small—in bringing about” Wilson’s neck, back, and knee injuries. (Cleaned
up.) See McBride at 703, fn. 13. While the doctors’ affidavits do not speak specifically
12 OHIO FIRST DISTRICT COURT OF APPEALS
to the broken boom, a jury could reasonably infer that the need to lift such heavy
equipment into and out of the truck constituted part of the “excessive physical labor”
that the doctors aver contributed to his degenerative knee, back, and neck conditions.
{¶34} CSX counters that FELA does not permit Wilson to “recover simply
because of conditions encountered as part of his job requirements.” See Potrykus v.
CSX Transp., Inc., 2010 U.S. Dist. LEXIS 73722, *10 (N.D.Ohio Jul. 21, 2010), citing
Stevens v. Bangor & Aroostook RR., 97 F.3d 594, 598 (1st Cir. 1996). It is certainly
true that FELA, “unlike workmen’s compensation statutes, does not make the
employer an insurer,” and that a “FELA plaintiff is not entitled to absolute security”
on the job. Conway v. Consol. Rail Corp., 720 F.2d 221, 223 (1st Cir. 1983), citing
Inman v. Baltimore & Ohio RR., 361 U.S. 138, 140 (1959). Rather, a FELA plaintiff
must show negligence. Thus, a worker whose ordinary job duties have caused him to
suffer long-term degenerative injuries can prevail in a FELA suit only if the railroad
breached its duty to act as a reasonable employer in “creating a reasonably safe
working environment.” Darrough v. CSX Transp., Inc., 321 F.3d 674, 676 (7th Cir.
2003). It is not enough for a FELA plaintiff to show that their “working environment
could have been safer.” Id.
{¶35} Three cases from the Seventh Circuit illustrate this line. In Walker v.
Northeast Regional Commuter RR. Corp., 225 F.3d 895, 896 (7th Cir. 2000), a FELA
plaintiff sought to recover for injuries he experienced during a two-person lift of a 140-
pound blade for a piece of equipment. The plaintiff asserted that the workplace had
been negligently arranged so that he was prevented from using the crane or forklift to
do the lift, and that the railroad had been negligent in requiring him to lift more than
50 pounds. Id. at 897. The trial court granted the railroad’s motion for summary
judgment, and the Seventh Circuit affirmed, holding that the plaintiff had failed to
13 OHIO FIRST DISTRICT COURT OF APPEALS
introduce evidence that the single lift was not reasonably safe. Id. at 897-899.
{¶36} In reaching this determination, the appellate court distinguished two of
its prior FELA decisions. In one, the court had upheld a FELA verdict for an employee
who, at the instruction of the railroad, “was continually lifting a heavy load,” which the
railroad could have alleviated by providing him with a crane or additional workers.
Heater v. Chesapeake & Ohio Ry. Co., 497 F.2d 1243, 1247 (7th Cir. 1974). And in the
other, the court had reversed a summary judgment for a railroad, because the evidence
had showed that the railroad had proven “[i]mpervious to repeated complaints of
inadequate ventilation” and had refused to implement equipment to better clean the
air. Harbin v. Burlington N. RR. Co., 921 F.2d 129, 131 (7th Cir. 1990).
{¶37} According to the Walker court, Heater and Harbin were distinguishable
because in those cases there was evidence that the plaintiffs’ injuries had been
preventable and the railroads should have known better. In Heater, for example, the
evidence showed that the plaintiff had been called on to lift objects even heavier than
Walker had and to do so “continually,” whereas Walker had only been required to
perform the single manual lift by an unfortunate set of circumstances. Walker at 898,
discussing Heater at 1247. And in Harbin, the plaintiff had offered evidence of
repeated employee complaints and of alternative safeguards the railroad could have
employed, unlike Walker, who had offered neither. Walker at 898, discussing Harbin
at 131.
{¶38} As we have already discussed, Wilson contends that he was regularly
and repeatedly required to lift 40- to 100-pound equipment into his truck without
mechanical assistance and with a single helper. Wilson was supposed to have used a
boom to perform these lifts, rather than doing so by hand—indeed, he testified that he
was trained to do so. Wilson testified that his boom regularly malfunctioned, that he
14 OHIO FIRST DISTRICT COURT OF APPEALS
complained about the issue to his supervisors, and that CSX nevertheless failed to
provide him with a working boom. As such Wilson, like the Heater and Harbin
plaintiffs (and unlike the Walker plaintiff), produced evidence that tended to show not
only that Wilson’s workplace could have been safer, but that CSX had forced him to
engage in repeated unsafe activities by its knowing inaction or ineffective remedial
action. In cases where the evidence crosses that threshold, “the issue of negligence is
one for juries to determine according to their finding of whether an employer’s
conduct measures up to what a reasonable and prudent person would have done under
the same circumstances.” Wilkerson v. McCarthy, 336 U.S. 53, 61 (1949).
{¶39} CSX further argues that “neither doctor explains what is meant by
‘excessive physical labor’ or what would have had to change in order for Wilson’s
physical labor to not be ‘excessive.’ And neither provides an opinion that Wilson’s
labor was unreasonably dangerous to perform.” But, taken together, Wilson’s
testimony and the doctor’s affidavits were sufficient to show that CSX’s failure to
provide Wilson with a consistently functioning boom contributed in some measure to
Wilson’s injuries. The doctors’ affidavits show, as CSX admits, that “Wilson’s
degenerative medical conditions were related to his work”—specifically, the strain that
work put on his body. Being forced to hoist 100-pound tanks by hand, rather than by
boom, would certainly have contributed to that strain. The doctors themselves were
not required to opine on CSX’s duty of care in order to substantiate Wilson’s claim of
causation.
{¶40} Thus, we hold that disputes of material fact precluded summary
judgment for CSX on the issues of whether CSX was negligent in failing to furnish
Wilson with a working boom for his work truck, and whether that failure “played any
part, even the slightest, in producing” Wilson’s degenerative knee and spine injuries.
15 OHIO FIRST DISTRICT COURT OF APPEALS
(Cleaned up.) See McBride, 564 U.S. at 703. The trial court therefore erred in
categorically granting summary judgment on Wilson’s first claim.
2. Failure to Provide Adequate Assistance
{¶41} Wilson’s second theory of CSX’s negligence concerns Wilson’s frequent
welder-helper, Teddy. Wilson testified that Teddy “was just a terrible helper,” and that
Teddy would sometimes refuse to help Wilson unless a supervisor was surveilling him.
Wilson testified that Teddy was the “[l]aziest on the job in the whole railroad,” and
described the travails of working with Teddy as follows:
A. He—he just—now, he—he was the kind of guy that would
sit on the back bumper and watch you unless you got in [sic] him and—
and told him to get to work or—and—and if you did get on him and tell
him to go to work, he—he didn’t want to do it and he—he didn’t do it.
Q. Okay. So what kind of things would you have to do then?
A. Well, I would do my work and—and his work.
Q. Okay. Well, what would that be? I mean, what work of his
were you doing?
A. Pulling spikes. I—I would—on—on a—when I had other
helpers, I pulled about half the spikes. And then I had him, I would pull
over half the spikes and—but I was—you know, and I had to tell him
every bit what to do and everything.
...
Q. In other words, is the complaint that you had to pull more
spikes because Teddy wasn’t doing it?
A. Yes, sir. I would—I would pull half of his spikes, too.
{¶42} Wilson testified that he only raised concerns about Teddy to a
16 OHIO FIRST DISTRICT COURT OF APPEALS
supervisor on one occasion, during a morning job briefing roughly four months before
Wilson took disability retirement (and after his knee surgery). According to Wilson,
he told Teddy and the supervisor that Teddy needed to “get the lead out of his butt,”
and the supervisor responded that Wilson should not speak that way to Teddy. Wilson
also testified that other welders had complained about Teddy’s substandard
performance, but he provided as his only example an instance when two workers “took
[Teddy] to the office for smelling so bad,” in order to make him “take a bath.” Wilson
further testified that older foremen for whom Teddy had worked would “talk about it,”
and that “[e]verybody knew how bad Teddy was.”
{¶43} Wilson argues that the railroad’s failure to provide Wilson with better
welder helpers increased the strain of his work and constituted negligence. Courts
have accepted negligent or deficient staffing as a theory of liability under FELA in
limited contexts. Eighty years ago, for example, the United States Supreme Court held
that a jury could find an employer negligent for failing to provide adequate assistance
to help move “a greased, 1000-pound steel tube, 30 feet in length.” Blair v. Baltimore
& Ohio RR. Co., 323 U.S. 600, 604 (1945).
{¶44} But the negligent-staffing cases suggest that an employer only has a duty
to provide additional or better assistants if the tasks at issue are themselves inherently
dangerous, such that no reasonable employer would allow them to be performed
without additional hands. “An employer is not required to provide an employee with
additional help simply to make his tasks easier. A task must be inherently unsafe for
an employer to be negligent for failing to provide additional help.” (Citations omitted.)
Miller, 2007-Ohio-5470, at ¶ 13 (6th Dist.). Thus, courts have drawn a line between,
on the one hand, an injury suffered by an employee who was left alone to move a “55
gallon oil drum, weighing about 600 pounds,” and, on the other, a shoulder injury
17 OHIO FIRST DISTRICT COURT OF APPEALS
sustained by a worker engaged in the ordinary task of driving spikes, whose job would
have been less onerous with greater assistance. Compare Ross v. Chesapeake & Ohio
Ry. Co., 421 F.2d 328, 329 (6th Cir. 1970), with McKennon v. CSX Transp., 897
F.Supp. 1024, 1027 (M.D.Tenn. 1994), aff’d, 56 F.3d 64 (6th Cir. 1995).
{¶45} Wilson can point to no evidence in the summary-judgment record that
CSX breached its duty of care in failing to provide him with adequate assistance. The
issue is one of foreseeability. A FELA defendant’s “duties are measured by what is
reasonably foreseeable under like circumstances—by what in the light of the facts then
known, should or could reasonably have been anticipated.” (Cleaned up.) McBride,
564 U.S. at 703, quoting Gallick, 372 U.S. at 118. In other words, Wilson’s deficient-
assistance theory requires him to show that CSX or its agents should have known of
Teddy’s deficient assistance and should have foreseen that it would lead to an
employee’s injury.
{¶46} But Wilson’s evidence suggests the opposite. Wilson did testify that
Teddy failed to assist him in lifting heavy equipment, such as the “surface grinder,”
which weighed 40 pounds. Yet Wilson also testified that, when supervisors were
watching, Teddy became an efficient and useful helper. Thus, the only way for CSX to
have notice of Teddy’s unwillingness to work would have been if Wilson had reported
it.
{¶47} Wilson testified that he complained of Teddy’s performance only once,
only indirectly, and only in the final months of his career. His complaint came four
months before his departure—and after the injuries of which he now complains.
Further, Wilson did not tell his supervisor that Teddy was failing to assist him with
heavy lifts. Rather, Wilson simply told Teddy to “get the lead out of his butt,” i.e., to
pick up the pace and show initiative, in the hearing of his supervisor.
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{¶48} Further, while Wilson attested that Teddy’s laziness was common
knowledge, he offered no evidence that anyone knew Teddy was leaving his work
partners to perform two-person lifts singlehanded. In fact, the only example Wilson
provided when discussing other welders’ formal complaints about Teddy was an
instance in which welders had complained about Teddy’s odor.
{¶49} In essence, Wilson alleges that CSX was negligent for not firing Teddy,
or else for not providing Wilson with a better welder helper. But without knowledge of
Teddy’s refusal to assist Wilson in any inherently dangerous activities, CSX had no
duty to take such steps. Wilson simply has not offered evidence that, prior to Wilson’s
injury, CSX knew or should have known that Teddy’s assistance was so deficient as to
put any welder he worked with in harm’s way.
{¶50} Because Wilson failed to carry his burden to show that CSX breached its
duty of care by allowing Teddy to continue working with Wilson, we hold that the trial
court correctly granted summary judgment for CSX on that issue.
3. Failure to Assess/Train/Warn
{¶51} The remainder of Wilson’s theories of negligence under his cumulative-
traumatic-injury claim come from the safety report of Wilson’s expert, Peter F. Kelly.
Based on that report, Wilson contends that CSX was negligent in (1) failing to perform
job hazard analyses (“JHAs”) to assess the safety of Wilson’s work, (2) failing to
provide Wilson with adequate safety training, and (3) failing to provide adequate
warnings of the safety risks attending certain actions.
{¶52} Even assuming that all three deficiencies constituted negligence on the
part of CSX, Wilson failed to point to any evidence that such negligence contributed to
his injuries.
{¶53} At bottom, the problem is that Wilson hasn’t shown what any of the
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precautionary measures he complains of would have changed. Kelly’s report does not
explain, for example, what any JHAs would have said. According to Kelly, “JHA
initiatives begin with a comprehensive assessment of employee jobs, the major steps
to the job, identifying any physical and health hazards associated with each step, and,
most importantly, the controls used to mitigate/minimize job risk.” Without knowing
what hazards the JHAs would have disclosed with respect to Wilson’s tasks, or what
mitigation measures they would have suggested, we cannot know whether the lack of
JHAs contributed to Wilson’s injuries.
{¶54} Similar rationales apply to Wilson’s failure-to-train and failure-to-warn
theories of negligence. The Kelly report does not disclose what warnings and trainings
should have been provided, nor whether those warnings or trainings would have
prompted action that might have reduced the likelihood or severity of Wilson’s knee,
neck, or back injuries. Without evidence that the warnings or trainings would have
prompted Wilson to act differently, we cannot know whether they would have had any
impact on him, nor whether that impact would have mitigated his injuries.
{¶55} Even assuming that Kelly’s report showed that CSX was negligent in
failing to perform JHAs, offer certain trainings, and provide certain warnings, Wilson
failed to show that any of these deficiencies played a part, no matter how small, in
causing or aggravating his complained-of injuries. Thus, the trial court was correct to
enter summary judgment in CSX’s favor on these issues.
C. Incident on November 20, 2012
{¶56} Wilson’s next FELA claim concerned an alleged injury to his right knee,
sustained after tripping over loose joint bars stored in the back of his work truck on
November 20, 2012. Wilson contends that CSX was negligent in failing to furnish his
truck with a storage rack to gather and hold the joint bars, and that this negligence
20 OHIO FIRST DISTRICT COURT OF APPEALS
contributed to his tripping, falling, and injuring his knee.
{¶57} The trial court rejected this claim because Wilson never reported his
injury to his workplace, and told his doctor it had occurred several days later while at
home. The trial court acknowledged that, in his deposition, Wilson had explained he
had not come forward for fear of workplace retaliation. But the court did not credit
this rationale, as Wilson had “made at least five reports of injuries and received cash
settlements over the course of his employment” and “there is no evidence in the record
to suggest that the injury happened during work.”
{¶58} The trial court’s determination that Wilson lied in his deposition
testimony rested on a determination regarding his credibility, and where “resolution
of [a] factual dispute will depend, at least in part, upon the credibility of the parties or
their witnesses, summary judgment . . . is inappropriate.” Turner v. Turner, 67 Ohio
St.3d 337, 341 (1993). Wilson testified that he told his wife about his knee injury upon
returning home from work on November 20, and that he had subsequently lied to his
doctor. If a jury found Wilson credible, it could believe his injury occurred at work and
that he had lied to his doctor. If, like the trial court, a jury found his story incredible in
light of his prior workplace complaints, then it would rule against him. The trial court,
however, was not entitled to weigh the evidence and make such credibility
determinations at the summary-judgment stage.
{¶59} Nevertheless, after reviewing the summary-judgment record de novo
and properly drawing inferences in Wilson’s favor, we conclude that CSX was entitled
to summary judgment on Wilson’s claim relating to his November 20, 2012 injury,
because Wilson had failed to introduce evidence that any alleged negligence on CSX’s
part caused the injuries of which he now complains.
{¶60} Wilson’s complaint alleged that “[a]s a result of [CSX’s] negligence,
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[Wilson] sustained injuries to his right knee on November 20, 2012.” He further
alleged that, as a result of that injury, he “lost time from work and lost wages,”
“required medical treatment and medical care and incurred medical bills and medical
expenses,” and “sustained pain and suffering, mental anguish, and loss of enjoyment
of life.”
{¶61} But the only injuries substantiated by record evidence were Wilson’s
“right knee degenerative joint disease” and his “cervical degenerative disc disease,” as
set forth in his doctors’ affidavits. These are the ailments for which Wilson apparently
took time off work and received extensive medical care.
{¶62} In their affidavits, Wilson’s doctors did not aver that these ailments
were caused, aggravated, or facilitated by any acute traumatic incident, but by
“excessive physical labor at the railroad.” Thus, we have no evidence in the record that
Wilson’s acute traumatic injury—the tripping and falling in the bed of his truck—was
linked to the degenerative conditions for which he seeks to recover.
{¶63} Even assuming that CSX was negligent in failing to furnish Wilson with
a truck that had a rack for holding joint bars, Wilson has nevertheless failed to carry
his burden to introduce evidence of causation. He provides no evidence that his
November 20 trip-and-fall played a part in the degenerative conditions for which
Wilson now seeks to recover. Without evidence of that causal connection, CSX was
entitled to, and the trial court properly granted, summary judgment on Wilson’s
November 20, 2012 acute-traumatic-injury claim.
D. Incident on January 24, 2013
{¶64} Wilson’s third and final FELA claim concerns injuries he allegedly
sustained as a result of an incident on January 24, 2013, when Wilson was working
from inside a hole that had been left when his foreman had removed a railroad tie. No
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single traumatic event or movement appears to have triggered Wilson’s alleged injury
on January 24. When asked what event caused his knee injury that day, Wilson
testified, “I can’t, I can’t point it out to one second, just overall down in that hole.” But
at some point while down in that hole Wilson “felt something in [his] knee again” and
“went on home hurting.” The next day, Wilson’s knee went out.
{¶65} At bottom, Wilson contends his injury stemmed from the stress placed
on his knee by having to kneel, bend, and crouch around in the hole left by the tie.
Thus, his claim is that CSX, acting through its agents, was negligent in requiring him
to perform the weld and repair the track from within the hole left by the removed
crosstie and that CSX thereby contributed to his knee injury.
{¶66} The court below granted CSX summary judgment on this claim, partly
on the same failure-to-report theory it had applied to his November 20, 2012 claim.
That rationale was wrong with respect to this claim for essentially the same reasons it
was wrong with respect to the prior claim: it involved weighing the evidence and
making credibility determinations inappropriate for summary judgment. See Turner,
67 Ohio St.3d at 341-342.
{¶67} This time, however, the trial court included a second basis for rejecting
Wilson’s claim: that the injury was sustained as a result of “essentially his normal job
duties.”
{¶68} Jobs involving manual labor always carry some risk of injury—this is
part of the rationale for workers’ compensation laws. The law of negligence does not
impose upon an employer a duty to eliminate all risk of strain and injury from such
jobs. Thus, as we have already noted, a plaintiff cannot ordinarily recover “simply
because of conditions encountered as part of his job requirements.” Potrykus, 2010
U.S. Dist. LEXIS 73722, at *10-11, citing Stevens, 97 F.3d at 598; accord Conway, 720
23 OHIO FIRST DISTRICT COURT OF APPEALS
F.2d at 223. A railroad worker can only recover under FELA if his injury was a result
of railroad negligence.
{¶69} Wilson contends that the types of movements he was compelled to
perform on this date strained his body so as to contribute to his knee injury. But
Wilson points to no industry standard instructing that such welds should be completed
differently, no evidence that CSX or its agents knew they were subjecting Wilson to an
unusually dangerous task, and no suggestion of what CSX should have done instead.
In fact, Wilson had no problem with his task:
Q. Okay. Are you claiming you shouldn’t have had to do that
on that day in January?
A. No. No, sir. I’m not saying that. That’s part of my job.
And while Wilson did tell his foreman that he “d[id]n’t have to take that tie off for me,”
this tells us nothing about whether the foreman was negligent for declining the offer.
{¶70} Finally, as with his cumulative-trauma claim, Wilson contends that
Kelly’s expert report proves CSX’s negligence in failing to assess risks, implement
protocols, and train employees. But as already discussed, even assuming that all of
these omissions constituted negligence on CSX’s part, Wilson has again offered no
evidence that any protocol, training, or assessment would have kept Wilson from
working in that ditch in the manner he did. Without such evidence, we would again be
left with a breach of duty and an injury, but no causal link.
{¶71} The trial court therefore properly granted summary judgment in favor
of CSX on Wilson’s third claim.
III. CONCLUSION
{¶72} Wilson introduced evidence sufficient to raise a jury question regarding
whether CSX negligently failed to furnish Wilson with a properly functioning boom for
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his work truck, and whether, over time, the added physical exertion caused by the lack
of a functional boom contributed to Wilson’s degenerative knee, back, and neck
conditions. We therefore hold that the trial court erred in granting summary judgment
for CSX with respect to the truck-boom issue and reverse the trial court’s summary
judgment as to that issue. However, because Wilson failed to carry his burden with
respect to his other cumulative-traumatic-injury theories, as well as his two acute-
traumatic-injury claims, we affirm the trial court’s summary judgment as to those
claims and issues. We overrule in part and sustain in part Wilson’s sole assignment of
error, and we remand the cause to the trial court for further proceedings consistent
with this opinion.
Judgment accordingly.
KINSLEY, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.