Ernest Wirtz, 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This opinion will be unpublished and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
A17-0635

Ernest Wirtz,
Appellant,

vs.

Union Pacific Railroad Company,
Respondent.

Filed December 26, 2017
Affirmed in part, reversed in part, and remanded
Reyes, Judge

Hennepin County District Court
File No. 24-CV-16-702

Michael L. Weiner, Yaeger & Weiner, P.L.C., Minneapolis, Minnesota; and

James T. Farnan (pro hac vice), Daniel J. Downes, Ridge & Downes, Chicago, Illinois; and

Russell A. Ingebritson, Ingebritson & Associates, P.A., Edina, Minnesota (for appellant)

Dan J. Gendreau, Donna Law Firm, P.C., Minneapolis, Minnesota (for respondent)

Considered and decided by Peterson, Pres iding Judge; Bjorkman, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this case brought under the Federal Employers’ Liability Act (FELA), 45 U.S.C.
§§ 51-60 (2012), and 49 C.F.R. § 213.37, appellant challenges the district court’s grant of
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summary judgment in favor of respondent, arguing that he met his burden under FELA and
the regulation to show that respondent failed to provide him with a reasonably safe
workspace. We affirm in part, reverse in part, and remand.
FACTS
On April 2, 2014, appellant Ernest Wi rtz and his crew members, employees of
respondent Union Pacific Railroad Company (Union Pacific), were assigned to work on a
line of rail in Inver Grove Heights, Minnesota. Wirtz drove himself and his crew foreman
to the job site in a company pick-up truck. He used an access road and parked the truck at
the bottom of a hill adjacent to the job site. Both men walked up th e hill to the job site
upon arrival. That afternoon, Wirtz and hi s foreman finished work and returned to the
truck following the same path they used that morning to ascend the hill. While following
his foreman and descending the hill, Wirtz slipped and fell, injuring his ankle.
Wirtz filed suit, alleging that Union Pacifi c negligently failed to provide him with a
reasonably safe work space, in violation of FELA. Wirtz ame nded his complaint,
additionally arguing that Union Pacific’s acts and omissions constituted negligence per se
because Union Pacific failed to control the vegetation in the area where he fell in violation
of 49 C.F.R. § 213.37.
Union Pacific filed a motion for summary judgment, alleging that Wirtz failed to
produce evidence to support his FELA claim and arguing that 49 C.F.R. § 213.37 was not
enacted for the safety of empl oyees. The district court gr anted Union Pacific’s summary
judgment motion, determining that there were no genuine issues of material fact and that

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appellant failed to offer evidence sufficient to show that Union Pacific negligently failed
to provide him with a reasonably safe workplace.
This appeal follows.
D E C I S I O N
Summary judgment is properly granted if the “[p]leadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that either party is entitled to judgment as a
matter of law.” Minn. R. Civ. P. 56.03. “On appeal from summary judgment, we must
review the record to determin e whether there is any genuine issue of material fact and
whether the district court erred in its application of the law.” Dahlin v. Kroening , 796
N.W.2d 503, 504-05 (Minn. 2011). We may not weigh the evidence or make factual
determinations, but must consider the evid ence in the light most favorable to the
nonmoving party. McIntosh Cty. Bank v. Dorsey & Whitney , LLP, 745 N.W.2d 538, 545
(Minn. 2008).
I. Wirtz produced sufficient evidence to overcome Union Pacific’s summary-
judgment motion on his FELA claim.

Wirtz argues that he presented sufficient evidence on his FELA claim of negligence
to overcome Union Pacific’s summary-judgment motion. We agree.
Section 1 of FELA provides 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 resu lting in whole or in part from the negligence of any of the
officers, agents, or employees of such carrie r.” 45 U.S.C. § 51 (2012). Congress passed
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FELA with the intent of “provid[ing] liberal recovery for injured workers.” Kernan v. Am.
Dredging Co., 355 U.S. 426, 432, 78 S. Ct. 394, 398 (1958).
To establish a claim of negligence unde r FELA, a plaintiff must offer evidence
proving the common-law elements of neg ligence: duty, breach , foreseeability, and
causation. Smith v. Soo Line R.R. Co., 617 N.W.2d 437, 439 (Minn. App. 2000) (citation
omitted), review denied (Minn. Nov. 21, 2000). However, a plaintiff’s burden of proof to
present a case to the jury is significantly lighter under FELA than at common-law. Habrin
v. Burlington N. Ry. Co., 921 F.2d 129, 132 (7th Cir. 1990) (providing examples of FELA
cases submitted to the jury based on “evidence scarcely more substantial than pigeon bone
broth”). Courts require a mere “scintilla” of evidence to establish negligence in FELA
case. Hauser v. Chi., Milwaukee, St. Paul & Pac. R. Co. , 346 N.W.2d 650, 653 (Minn.
1984) (quotation omitted).
Under FELA, “a railroad has a duty to provide its employees with a reasonably safe
workplace.” Smith, 617 N.W.2d at 439 (citation omitted). “The catalyst which ignites this
duty is knowledge, actual or construc tive[,]” of the unsafe condition. Gallose v. Long
Island R. Co. , 878 F.2d 80, 85 (2d Cir. 1989). A ra ilroad’s duty to provide a safe work
place is nondelegable and exists even when its employees are requi red to go onto the
premises of a third party over wh ich the railroad has no control. Shenker v. Balt. & Ohio
R.R., 374 U.S. 1, 7, 83 S. Ct. 1667, 1671-72 (1963).
“A railroad breaches its duty to provide a safe workplace when it knows or should
know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform
or protect its employees.” Smith, 617 N.W.2d at 439.
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“Reasonable foreseeability of harm is an essential ingredient of [FELA]
negligence[.]” Gallick v. Balt. & Ohio R.R., 372 U.S. 108, 117, 83 S. Ct. 659, 665 (1963).
This requirement is met if the railroad carrier “was or should have been aware of conditions
which created a likelihood that [the employee] , in performing the duties required of him,
would suffer just such an injury as he did.” Rogers v. Mo. Pac. R.R. , 352 U.S. 500, 503,
77 S. Ct. 443, 447 (1957).
The plaintiff’s proximate-cause burden under FELA is lighter than for common-law
negligence. Id. at 503. The railroad carrier is liable if “the proofs justify with reasons the
conclusion that employer negligence played any part, even the slightest, in producing the
injury or death for which the damages are sought.” Gallagher v. BNSF Ry. Co. , 829
N.W.2d 85, 95 (Minn. App. 2013) (quoting Consol. Rail Corp. v. Gottshall, 512 U.S. 532,
543, 114 S. Ct. 2396, 2404 (1994)).
Here, the district court found that Union Pacific did not breach its duty to provide
Wirtz a reasonably safe workplace because there was no evidence of unreasonably unsafe
conditions, deeming Wirtz’s testimony regarding these conditions as “mere speculation.”
Although Wirtz admitted that he did not know precisely what caused him to slip and fall,
he did testify that he had co ncerns that the embankment, although minimal in its slope-
angle, may have been slippery. He also testified that the embankment’s grass was matted-
down, the ground was wet, and his clothes we re soaked in water after he fell. The
determination of whether Wi rtz’s testimony about the cond ition of the embankment was
“mere speculation” is a question of fact for the jury. See Blair v. Balt. & Ohio R. Co., 323
U.S. 600, 601, 65 S. Ct. 545, 546-47 (1945) (“to deprive railroad workers of the benefit of
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a jury trial in close or doubtf ul cases is to take away a g oodly portion of the relief which
Congress has afforded them”); Tiller v. Atl. Coast Line R. Co., 318 U.S. 54, 68 n.30, 63 S.
Ct. 444, 451 (1943) (“to the maximum extent proper questions in actions arising under the
[FELA] should be left to the jury”); Gallagher, 829 N.W.2d at 95 (“Whether appellant’s
injuries were caused by any alleged breach is a question of fact.”).
Considering the evidence in the light mo st favorable to the party against whom
summary judgment was granted, McIntosh Cnty. Bank, 745 N.W.2d at 5 45, we conclude
that Wirtz produced the necessary “scintilla” of evidence sufficient to withstand summary
judgment. Wirtz produced evidence from wh ich a jury could reasonably conclude that
Union Pacific breached its duty of care and that such breach caused Wirtz’s injuries. The
district court erred in granting Union Pa cific’s summary judgment motion on Wirtz’s
FELA claim.
II. The district court did not err in granting summary judgment in favor of Union
Pacific on Wirtz’s 49 C.F.R. § 213.37 claim.

Wirtz argues that the district court erred in finding that he could not meet his burden
under 49 C.F.R. § 213.37 to show Union Pacific’s negligence per se. We disagree.
Under 49 C.F.R. § 213.37(c), “[v]egeta tion on railroad property which is on or
immediately adjacent to roadbed shall be contro lled so that it does not . . . interfere with
railroad employees performing normal trackside duties.” Wirtz’s co-worker testified that
the distance between the job site and the serv ice road where Wirtz parked his truck was
approximately 250 feet. Wirtz testified that he was three-quarters of the way down the

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embankment when he fell, meaning he was at least 100 feet away from the tracks when he
fell.
49 C.F.R. § 213.37 uses the words “on” and “adjacent to” to describe the
vegetation’s location in relation to the roadbed. The word “on” is “used to indicate position
above and supported by or in contact with.” American Heritage Dictionary 1228 (4th ed.
2006). “Adjacent to” is defined as “close to; lying near.” Id. at 21. The Fifth Circuit has
defined roadbed as “the area of soil that supports the ballast which is the permeable
granular materials such as sand, gravel, crushed rock or slag, chat, cinders and so on placed
around and under the ties to promote track stability.” Mo. Pac. R.R. Co. v. R.R. Comm’n
of Tex., 948 F.2d 179, 182 n.2 (5th Cir. 1991) (quotation omitted).
Although the regulation does not define its geographic scope in feet or yards, other
courts have declined to apply the regulation to distances nearer to the track than in the
present case. The Fifth Circuit rejected the proposition that a railroad’s entire right-of-way
is an “area immediately adjacent to the roadbed” and held that the federal regulation does
not “cover the subject matter” of vegetation that is on the right-of-way but not immediately
next to the roadbed. Id. at 185 (quotation omitted). In a ddition, the Eastern District of
Louisiana concluded that ten to fifteen feet away from the roadbed was not vegetation “on
or immediately adjacent to the roadbed.” Hadley v. Union Pac. R. Co. , No. Civ. A. 02-
1901, 2003 WL 21406183, at *2 (E.D. La. 2003). Based on the regulation’s plain meaning
and the caselaw, 49 C.F.R. § 213. 37(c) is inapplicable here because Wirtz was more than
100 feet away from the roadbed.
Affirmed in part, reversed in part, and remanded.