Nathan Mead, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0480

Nathan Mead,
Appellant,

Amy Mead,
Plaintiff,

vs.

BNSF Railway Company,
Respondent,

Ture Lee,
Defendant,

and

BNSF Railway Company,
Defendant and Third Party Plaintiff,

vs.

Jerry Lee,
Third Party Defendant.

Filed January 16, 2018
Reversed and remanded
Hooten, Judge

Hennepin County District Court
File No. 27-CV-15-10789

William Kvas, Richard L. Carlson, Hunegs, LeNeave & Kvas, P.A., Wayzata, Minnesota
(for appellant)

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Lee A. Miller, Stephen M. Warner, Beth A. Prouty, Arthur, Chapman, Kettering, Smetak
& Pikala, P.A., Minneapolis, Minnesota (for respondent BNSF)

Alice E. Loughran, Steptoe & Johnson (pro hac vice), Washington, D.C. (for respondent)

Considered and decided by Larkin, Presiding Judge; Hooten, Judge; and Smith, T.,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant claims that the district court erred in granting summary judgment for
BNSF Railway Company on his Federal Employers’ Liability Act (FELA) negligence
claim. Because there is sufficient evidence of causation and foreseeability in t he record
for appellant’s claim to survive summary judgment, we reverse and remand.
FACTS
Appellant Nathan Mead was working as a carman for respondent BNSF Railway
Company on the night of August 3, 2012. Because of a storm, Mead’s supervisor told
Mead and the other carmen that they would not be leaving the sh op until the storm had
passed. The supervisor later received a call asking for repairs in Saint Paul . The
supervisor, despite what he had said earlier about the storm, decided to send Mead. Mead
was instructed to take a company truck, Unit 20, to perform the repair work. Prior to
leaving, Mead inspected Unit 20, as required by BNSF safety rules, and found tha t the
windshield had s lag burns, the defroster was defective , and the inspection lights on the
truck were not working properly. Mead informed his supervisor about the issues with his
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truck and asked to take a different vehicle, but the supervisor told Mea d to take Unit 20
because he was unable to give him a different vehicle.
On his way to the job site, Mead drove into a tunnel. Inside the tunnel , he was
forced to slow down and change lanes because of an earlier accident that had occurred in
the tunnel. As Mead was preparing to change lanes within the tunnel , he was rear-ended
by another driver. In his deposition, Mead explained that the driver’s seat in the truck
reclined upon impact, which caused him to be “torpedoed” b ackward, causing his head to
break through the back window of the truck . Mead suffered injuries to his head, neck,
back, and shoulders in the accident. He did not claim that the rain or any of the defects
that he had complained about on the truck contributed to the accident.
After the accident, Unit 20 was taken to Bona Brothers Auto and Truck Service to
be inspected and repaired. Bona Brothers does repair work on BNSF’s vehicles and has
done so for decades. On Unit 20 alone , Bona Brothers has done over $80,000 worth of
repairs and maintenance. When Unit 20 was brought to Bona Brothers after the accident,
the driver’s seat was in a reclined position. After inspecting the driver’s seat, Bona
Brothers determined that the recliner and slider mechanisms were intact and functioning
properly.
Mead hired William H. Muzzy III, a mechanical engineer who consults and provides
expert evaluation and testimony on restraint system effectiveness in automobile accidents.
In his report, Muzzy noted that Bona Brothers had previously performed repairs on the
driver’s seat of Unit 20, including reupholstering the seat and replacing the cushioning, but
had not replaced the recliner and slider mechanisms on the seat. According to Muzzy, it
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would have been prudent to rebuild the entire seat structure or replace it with a new seat
given the seat’s condition and the constant use of the truck. Muzzy concluded that the
recliner mechanism failed on the seat, that Bona Brothers knew or should have known that
the driver’s seat recliner was worn and defective, and that Mead would not have received
the injuries caused by hitting his head against the back window had the recliner mechanism
not failed.
Mead brought a negligence claim with two theories of liability against BNSF under
the Federal Em ployers’ Liability Act, 45 U.S.C. § 51 (2012). Under the first theory of
liability, Mead alleged that when his supervisor forced him to drive Unit 20 despite his
request for a different vehicle, BNSF was neglig ent for failing to provide him with safe
equipment and to follow its own safety rules and policies . Under the second theory of
liability, Mead alleged that BNSF was negligent in its maintenance of the driver’s seat.
BNSF moved for summary judgment, which the district court granted. With respect to the
theory of negligence for not providing a different vehicle, the district court held that it
failed on the element of causation because Mead’s injuries were not caused by the rain or
the defects Mead had noted in his inspection of Unit 20. For the theory of negligence for
failure to maintain the driver’s seat, the district court held that it failed because notice and
foreseeability of the malfunction could not be established. This appeal followed.
D E C I S I O N
We review summary judgment de novo. Gallagher v. BNSF Ry. Co. , 829 N.W.2d
85, 88 (Minn. App. 2013). This requires determining whether there are any genuine issues
of material fact and whether the district court erred in its application of the law. Id. at 88–
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89. We consider the evidence in the light most favorable to the non -moving party. Id. at
89. Summary judgment is proper when there is no genuine issue of material fact and a
party is entitled to a judgment as a matter of law. Id.; Minn. R. Civ. P. 56.03.
However, “[a] plaintiff’s burden in a FELA action is . . . significantly lighter than it
would be in an ordinary negligence case” and “because his burden at trial is so low, a FELA
plaintiff can survive a motion for summary judgment when there is even slight evidence of
negligence.” Gallagher, 829 N.W.2d at 92 (alteration omitted) (quotations omitted). The
FELA only requires a “scintilla” of evidence to establish negligence to survive summary
judgment. Smith v. Soo Line R.R., 617 N.W.2d 437, 440 (Minn. App. 2000) (citing to
Hauser v. Chicago, Milwaukee, St. Paul & Pac. R.R., 346 N.W.2d 650, 653 (Minn. 1984)),
review denied (Minn. Nov. 21, 2000) . FELA actions are often submitted to juries based
on evidence only “scarcely more substantial than pigeon bone broth.” Harbin v. Burlington
N. R.R., 921 F.2d 129, 132 (7th Cir. 1990). Because “[i]t is well established that the role
of the jury is significantly greater in FELA cases than in common law negligence actions,”
Eggert v. Norfolk & W. R.R. , 538 F.2d 509, 511 (2d Cir. 1976) , quoted in Gallagher, 829
N.W.2d at 92, “[t]he issue of negligence should b e sub mitted to a jury if there is a
reasonable basis in the record for concluding that there was negl igence which caused the
injury.” Gallagher, 829 N.W.2d at 92 (quotation omitted); see also Blair v. Baltimore &
Ohio R.R., 323 U.S. 600, 602, 65 S. Ct. 545, 546 (1945) (“To deprive railroad workers of
the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the
relief which Congress has afforded them.” (quotation omitted)); Tiller v. Atlantic Coast
Line R.R., 318 U.S. 54, 68 n.30, 63 S. Ct. 444, 451 n.30 (1943) (“[T]o the maximum extent
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proper, questions in actions arising under [FELA] should be left to the jury.”); Ackley v.
Chicago & N. W. Transp. Co., 820 F.2d 263, 267 (8th Cir. 1987) (“The Supreme Court has
emphasized the jury’s role in determining whether an employer has breached its duties
under the FELA.”).
I.
Mead first claims that BNSF was negligent in making him use Unit 20 despite his
verbal complaints about the vehicle and his request to be provided with a different truck.
The district court granted summary judgment on this theory of liability because it believed
that Mead was unable to demonstrate causation. Specifically, the district court determined
that the conditions that Mead complained about—the faulty defroster, the slag burns, and
the inspection lights—did not in any way cause the accident or Mead’s injuries.
But the FELA has a unique causation standard. The Supreme Court explained that
causation under the FELA “is as broad as could be framed” and that “a relaxed standard of
causation applies.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 691–92, 131 S. Ct. 2630,
2636 (2011) (quotations omitted). This standard can be traced back to Rogers v. Missouri
Pac. R.R., which explained that under the FELA “the test of a jury case is simply whether
the proofs justify with reason the conclusion that employer negligence played any part,
even the slightest , in producing the injury or death for which damages are sought.” 352
U.S. 500, 506, 77 S. Ct. 443, 448 (1957) (emphasis added). Importantly, McBride
explicitly rejected the idea that FELA causation requires the injury to be a “natural and
probable” consequence of the defendant’s negligence. 564 U.S. at 695, 705, 131 S. Ct. at
2638, 2644. We apply the McBride causation standard.
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The issue, then, for this court in reviewing the district court’s grant of summary
judgment is whether there is any evidence that BNSF’s negligence played any part, even
the slightest, in Mead’s injuries. BNSF argues that because the defects with Unit 20 did
not cause the accident, its negligence played no part in Mead’s injuries. Mead, however,
does not claim that the defects caused the accident. And BNSF frames the issue too
narrowly. BNSF had safety policies in place that required employees to not only inspect
their equipment, but also to raise any concerns about defects in the vehicles. That was
precisely what Mead did when he pointed out the obvious defects in Unit 20 and requested
a different vehicle.1 In his deposition, Mead said that the defects he pointed out “raise[d]
the initial flags that the vehicle . . . was not well maintained.” He even asked his supervisor
to call a superior to see if he could be given a different vehicle. The supervisor did so and
was still unable to obtain a different vehicle for Mead and instructed him to take Unit 20
and drive to the job sit e immediately. Mead argues that BNSF was negligent in making
him take Unit 20 on that stormy nig ht in spite of its safety policies . So the question is
whether the negligence in making Mead use Unit 20 played any part in his injuries, not
whether the defects that Mead complained about caused the injuries.
In viewing the evidence in the light most favorable to Mead, the non-moving party,
we conclude that there is support for Mead’s theory of liability that BNSF was negligent
in making him drive a vehicle in need of repair in violation of its own policy, and that the

1 Mead also testified at his deposition that the trucks used by the carmen at BNSF were
often in disrepair at any given time, and that he often had to verbally communicate his
concerns in order to get a vehicle repaired.
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poorly maintained vehicle at least played a role in causing his injuries. Had BNSF listened
to Mead’s concerns and provided him with a different truck —per company policy—then
Mead would not have found himself in a truck with a faulty seat and he would not have
“torpedoed” into the back window of the truck after the seat defectively reclined. And the
parties do not dispute that the seat in Unit 20 reclined during the accid ent and that Mead
suffered his injuries as a result of striking the window of the truck. We conclude that a
reasonable jury could find that BNSF was negligent in making Mead drive Unit 20 despite
his request for a different vehicle , and could find that th is negligence played a part in
Mead’s injuries.
The district court and BNSF compare this case to Alex v. BNSF Ry. Co., 103 So.3d
1180 (La. Ct. App. 2012). In Alex, the plaintiff was rear -ended while driving a company
car and brought a FELA claim because there were some defects with the vehicle. Id. at
1184. The court found that these defects had no effect on the vehicle’s crashworthiness
and did not contribute to Alex’s injuries, so it affirmed summary judgment. Id. BNSF
argues that we should affirm for similar reasons.
Mead’s case is different in two significant ways. First, Mead is alleging that BNSF’s
negligence in not listening to his request for a different vehicle was what led to his injuries,
not that BNSF’s negligence with respect to the defr oster, slag burns, and inspection lights
caused his injuries. In contrast, Alex alleged that BNSF was negligent for providing him
a vehicle with defects. Id. Second, Mead claims that it was a poorly maintained condition
in Unit 20—the faulty recliner mechanism—that directly caused his injuries. Alex, on the
other hand, admitted that his vehicle was “pretty crashworthy ” and did not attribute his
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injuries to any of the conditions in the vehicle. Id. In other words, even if BNSF had
provided Alex with a different vehicle with no defects, he still would have suffered the
same injuries. Unlike the factual situation in Alex, there is no dispute that Mead’s injuries
were caused or aggravated by a defective condition in Unit 20.
BNSF also argues that Mead’s first theory of liability should fail because the risk to
Mead was not foreseeable. This argument was not presented in BNSF’s arguments on
summary judgment to the district court. Indeed, for this theory, the district court granted
summary judgment on the issue of causation, not on foreseeability. This is the first time
that the argument has been presented. Nonetheless, we point out that in McBride the
Supreme Court explained that “[i]f negligence is proved . . . then the carrier is answerable
in damages even if . . . the manner in which [the injury] occurred was not probable or
foreseeable.” 564 U.S. at 703–04, 131 S. Ct. at 2643 (quotation omitted). As we explained
above, a reasonable jury could find that BNSF was negligent in forcing Mead to drive Unit
20 despite his objections and contrary to BNSF’s policy . Mead complained about the
safety of Unit 20, so it does not matter that it was more foreseeable that the defroster, slag
burns, or inspection lights would cause the injuries than a faulty seat. W e conclude that
Mead’s first theory of liability survives summary judgment on the issue of foreseeability.
II.
Mead’s second theory of liability was that BNSF was negligent in its maintenance
of the seat in Unit 20. The district court granted summary judgment on this theory because
it believed that Mead could not establish that it was foreseeable that the seat would fail .
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Specifically, the district court said that BNSF had no notice of any issue with the seat, so
it was not foreseeable that it was defective.
In a FELA case, a railroad’s conduct is measured by “the degree of care that persons
of ordinary, reasonable prudence would use under similar circumstances and by what [they]
would anticipate as resulting from a particular condition.” Ackley, 820 F.2d at 267 (citing
Gallick, 372 U.S. 108, 118, 83 S. Ct. 659, 665 (1963)). Thus, “[a] railroad breaches its
duty to provide a safe workplace when it knows or should know of a potential hazard in
the workplace, yet fa ils to exercise reasonable care to inform or protect its employees.”
Smith, 617 N.W.2d at 439. However, if there is no “reasonable ground to anticipate that a
particular condition . . . would or might result in a mishap and injury, then the party is not
required to do anything to correct [the] condition.” McBride, 564 U.S. at 703 , 131 S. Ct.
at 2643 (alterations in original) (quoting Gallick, 372 U.S. at 118 n.7, 83 S. Ct. at 666 n.7)
(quotation marks omitted).
Foreseeability can be established with proof of notice. Williams v. Nat ’l R.R.
Passenger, 161 F.3d 1059, 1062–63 (7th Cir. 1998). This can be done in two ways. First,
by proof of actual notice. Smith, 617 N.W.2d at 439; see also Brown v. Cedar Rapids &
Iowa City Ry. Co., 650 F.2d 159, 161 (8th C ir. 1981) (stating that a railroad can be found
liable if an officer, employee, or agent of the railroad has actual knowledge of the presence
of an unsafe condition prior to the accident). Second, by proof of constructive notice.
Smith, 617 N.W.2d at 439; see also Brown, 650 F.2d at 161 (stating that liability can attach
if an unsafe condition has existed for long enough to infer “that failure to know about it
and remove it was due to want of proper care”).
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There was evidence that Unit 20 has received over $80,000 worth of repairs from
2008 through 2013. The sheer amount of wear and tear on the vehicle, as evidenced by the
amount of money spent on repairing it in such a short period of time, makes it foreseeable
that the truck was potentially dangerous to drive. Bona Brothers had also performed work
on the seat prior to the accident, including reupholstering the seat cushions and replacing
the seatbelt. Muzzy, Mead’s expert, explained in his report that it would have been prudent
for Bona Brothers to just replace the entire seat structure, and that they either knew or
should have known that the driver’s seat recliner was worn and defective. This report on
its own raises a fact issue for the jury on whether it was foreseeable that the recl iner
mechanism was defective.
Muzzy’s report also references the deposition of Michael Lawler, another BNSF
employee, in which he stated that three or four months prior to Mead’s accident he had
trouble getting the reclining mechanism into the locked pos ition. This is significant
because while Lawler’s statement in Muzzy’s report is inadmissible as proof that there was
in fact a defect in the recliner mechanism, it is admissible as proof of notice. See Webb v.
Fuller Brush Co., 378 F.2d 500, 502 (3rd Cir. 1967). Lawler’s statement is relevant in two
ways.
First, Lawler’s statement is relevant to the issue of actual notice. BNSF argues that
for there to be actual notice the employee must report the condition that caused the accident.
BNSF relies heavily on Brown for how notice can be established, but BNSF misreads that
case. In Brown, an employee had in fact reported the unsafe condition to a supervisor, 650
F.2d at 163, but the court was just stating what had happened, not instituting a requirement
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of reporting t he unsafe condition t o a supervisor. 2 We instead rely on Brown’s earlier
language that says:
In a FELA action, the employee must show . . . that (1) an
officer, employee or agent of the railroad was responsible,
through negligence, for the presence of the unsafe condition;
or (2) at least one of such persons had actual knowledge of its
presence before the accident; or (3) the unsafe condition had
continued for a sufficient length of time to justify the inference
that failure to know about it and remove it was due to want of
proper care.
650 F.2d at 161 (emphasis added). The phrase “such persons” r efers to “officer[s],
employee[s] or agent[s]” of the railroad, so Mead has produced evidence that BNSF had
actual knowledge regardless of whether Lawler reported the problem with the recliner to a
supervisor. See id. We conclude that Mead produced suffi cient evidence to create a
material dispute of fact as to whether BNSF had actual notice of the defect in the recliner
mechanism.
Second, Lawler’s statement is relevant to the issue of constructive notice.
Constructive notice is established if the unsaf e condition has existed for long enou gh to
infer “that failure to know about it and remove it was due to want of proper care.” Brown,
650 F.2d at 161. 3 Lawler’s statement is evidence that the defect existed at least three or
four months prior to Mead’s accident. When we consider that, along with the fact that Unit
20 was frequently undergoing repairs, we hold that even if Bona Brothers was not actually

2 While Smith similarly discusses a supervisor being aware of the condition that caused the
injury, it does not require that awareness of an unsafe condition by a supervisor is necessary
for actual notice to exist. 617 N.W.2d at 439.
3 Brown does not speci fically use the word notice, but it is discussing the knowledge
necessary for a railroad to be liable for an unsafe condition, which we equate to notice.
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aware of the defect with the recliner mechanism, there is evidence to suggest it should have
been aware of it. Accordingly, we hold that a reasonable jury could find that constructive
notice existed.
Constructive notice is significant because t he FELA imposes liability on railroads
for negligence on the part of its agents. 45 U.S.C. § 51. Mead asserts that Bona Brothers
is an agent of BNSF and BNSF does not dispute this claim . Because the record indicates
that Bona Brothers has been performing repairs for BNSF for decades, it appears to be an
agent of BNSF. See, e.g., Smith, 617 N.W.2d at 439 (holding, on appeal from summary
judgment, that a railroad could be liable for the negligent act of the company that delivered
water to its workplace). Thus, BNSF can be liable under the FELA for negligence on the
part of Bona Brothers.
Because we hold that there was evidence that it was foreseeable that there would be
an issue with the recliner mechanism, and that there was evidence that BNSF had both
actual and constructive notice of the defect, we conclude that the district court erred in
concluding there was no genuine dispute of material fact and in granting BNSF’s motion
for summary judgment on the issue of foreseeability on Mead’s second theory of liability.
Reversed and remanded.