Leonard A. Wallace, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0502

Leonard A. Wallace,
Appellant,

vs.

BNSF Railway Company, a Delaware Corporation,
Respondent.

Filed November 18, 2019
Reversed and remanded
Hooten, Judge

St. Louis County District Court
File No. 69DU-CV-18-357

Thomas W. Fuller, Hunegs, LeNeave & Kvas, P.A., Wayzata, Minnesota (for appellant)

Stephen M. Warner, Allison V. LaFave, Arthur, Chapman, Kettering, Smetak & Pikala,
P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Cleary, Chief Judge; and
Worke, Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant employee challenges the summary-judgment dismissal of his negligence
claim under the Federal Employers’ Liability Act (FELA) arising out of personal injuries
suffered while working at BNSF Railway Company . Appellant argues that the district

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court erred by determin ing that he did not present sufficient evidence to create a genuine
issue of material fact on causation. We reverse and remand.
FACTS
Appellant Leonard Wallace w orked for BNSF for 39 years prior to the incident
leading to this lawsuit . In 2006, Wallace began working on a full -time welding crew for
BNSF, but he had experience in welding throughout his time at the company as a seasonal
worker. On April 28, 2015, W allace and his welding partner learned that their work
assignment for the day was welding a rail crossing about 10 0 miles from their office.
Wallace was the head welder.
Wallace began welding first. When his welding partner took over welding, Wallace
worked on the maintenance of the truck and tools. To do so, he used Deep Creep, a
flammable spray used to lubricate rusty equipment, to spray down the rusted doors of the
company’s truck and the tools in the truck. After he finished spraying the equipment,
Wallace walked back to where his partner was welding. “A red piece of metal” from the
welding flew at Wallace, hit his pant leg, and immediately started a fire. To try to
extinguish the fire, Wallace took off hi s gloves to rip off his pants. When that failed, he
found some dirt and smothered the fire. Wallace sustained second-degree burns on both
of his hands and his right leg.
Following the incident, Wallace filled out a personal injury report form with BNSF.
When describing how the injury occurred, Wallace stated, “While spraying tools, doors on
truck, spray went into clothing also.” He also stated that he could have prevented the injury

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“[b]y not accidentally having spray on clothing and hands.” Wallace told BNSF that there
was nothing the company could have done to prevent his injuries.
In November 2017, Wallace brought a neglig ence action under FELA against
BNSF, alleging that the company breached its duty to maintain a safe work environment.
Following discovery, BNSF moved for summary judgment asserting that Wallace’s own
negligence was the cause of his injuries and that his injuries were not foreseeable to BNSF.
In reply, Wallace argued that (1) the railroad could not establish that he was the sole cause
of his injuries when the evidence is viewed in the light most favorable to him , and (2) a
genuine issue of material fact exists because BNSF created the unsafe welding
environment. Wallace argued that BNSF was causally negligent as it failed to provide and
maintain a safe work truck; failed to provide proper tools and equipment, including
protective screens, flame-retardant clothing, and water hoses and tanks; failed to adopt safe
work procedures; and failed to safely staff its workplace.
Following a hearing, the district court granted BNSF’s motion for summary
judgment and concluded that there was no genuine causation issue because Wallace stated
in his injury report that he caused his injury.
This appeal follows.
D E C I S I O N
Wallace argues that the district court erred in granting BNSF summary judgment.
A district court must grant a motion for summary judgment “if the movant shows that there
is no genuine issue as to any material fact and the movant is entitled to judgment as a matter
of law.” Minn. R. Civ. P. 56.01. A genuine issue of material fact exists if a rational trier

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of fact, when considering the rec ord as a whole, could find for the nonmoving party.
Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008). This court applies
a de novo standard of review to the district court’s legal conclusions on summary judgment
and views the evidenc e in the light most favorable to the party against whom summary
judgment was granted. Commerce Bank v. West Bend Mut. Ins. Co., 870 N.W.2d 770, 773
(Minn. 2015).
Under FELA, 45 U.S.C. § § 51–60 (2012), “a railroad has a duty to provide its
employees with a reasonably safe workplace.” Smith v. Soo Line R.R. Co. , 617 N.W.2d
437, 439 (Minn. App. 2000), review denied (Minn. Nov. 21, 2000). Railroads are liable
for injuries that result “in whole or in part” from their negligence. Hauser v. Chicago,
Milwaukee, St. Paul. & Pac. R.R. Co. , 346 N.W.2d 650, 653 (Minn. 1984). While a
plaintiff mu st offer evidence of the common -law elements of negligence, a plaintiff’s
burden is significantly lighter under FELA. Smith, 617 N.W.2d at 439. The United States
Supreme Court has termed this lighter burden the “relaxed” causation standard. CSX
Transp., Inc. v. McBride , 564 U.S. 685, 690 , 131 S. Ct. 2630, 2632 (2011). Only a
“scintilla” of evidence is needed to establish a railroad’s negligence under FELA than in
an ordinary negligence action . Hauser, 346 N.W.2d at 653. “If there is any evidence of
negligence, the case should go to the jury.” Id.
The district court concluded that there were no genuine issues of material fact
regarding the cause of Wallace’s injuries. It reasoned:
To the Court, this case turns on the facts. Specifically, the facts
that [Wallace] knew that the lubricant was flammable, knew
that he had gotten some on his clothes, and knew that the

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byproducts of his partner’s welding c ould cause his clothes to
start on fire under those circumstances. By contrast, there was
nothing BNSF could have done or said to change the outcome.
In the Court’s view, based on th e facts present here,
[Wallace]’s negligence was the sole cause of the injury.

The district court indicated that each of Wallace’s allegations of negligence was
undermined by Wallace’s statements in his personal injury report that he caused his injury.
Wallace argues that the district court failed to properly app ly FELA’ s causation
standard. In doing so, he points to the Supreme Court’s decision in Rogers v. Missouri
Pac. R.R. Co., 352 U.S. 500, 77 S. Ct. 443 (1957). In Rogers, the Supreme Court discussed
Congress’s purposes in creating FELA:
The law was enacted because the Congress was dissatisfied
with the common -law duty of the master to his servant. The
statute supplants that duty with the far more drastic duty of
paying damages for injury or death at work due in whole or in
part to the employer’s negligence. The employer is stripped of
his common -law defenses and for practical purposes the
inquiry in these cases today rarely presents more than the single
question whether negligence of the employer played any part,
however small, in the injury or death w hich is the subject of
the suit. The burden of the employee is met, and the obligation
of the employer to pay damages arises, when there is proof,
even though entirely circumstantial, from which the jury may
with reason make that inference.

Id. at 507–08, 77 S. Ct. at 449. The Rogers court concluded that “the Congress vested the
power of decision in these actions exclusively in the jury in all but the infrequent cases
where fair-minded jurors cannot honestly differ whether fault of the employer played a ny
part in the employee’s injury.” Id. at 510, 77 S. Ct. at 450–51.
This case is factually similar to Rogers. Rogers worked as a railroad laborer and
was assigned to burn weeds and vegetation growing along the tracks. Id. at 501, 77 S. Ct.

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at 446. A s he was instructed, Rogers stopped burning the vegetation and ran away from
the tracks for safety when he heard the sound of an oncoming train. Id. But unbeknownst
to him, a passing train fanned the flames of the burning vegetation, carrying the flames to
his position and engulfing him. Id. The Missouri Supreme Court determined that , as a
matter of law, Rogers caused his injuries, partially because Rogers allegedly admitted that
he knew it was his primary duty to watch the fire and that he therefore brought on his own
emergency situation. Id. at 503–04, 77 S. Ct. at 447. But the United States Supreme Court
ruled that the jury could have found that the employer was negligent in part, and therefore
reversed the state court’s decision. Id. at 510–11, 77 S. Ct. at 451.
Here, the district court ruled that Wallace was the sole cause of his injuries because
he sprayed the Deep Creep that caused the fire to start. The district court relied heavily on
Wallace’s alleged admission in his personal injury report that he caused his injuries and
therefore was the sole legal cause of his injuries. But the district court did not discuss
whether BNSF’s conduct also contributed to Wallace’s injuries.
Under FELA, “the fact that the employee may have been guilty of contributory
negligence shall not bar a recovery, but the damages shall be diminished by the jury in
proportion to the amount of negl igence attributable to such e mployee.” 45 U.S.C. § 53 .
The district court failed to consider whether BNSF was a contributing cause of Wallace’s
injuries. The district court simply stated that Wallace’s “own report to the company,
however, belies any claim that [BNSF] was in any way responsible for this accident” and
“there was nothing BNSF could have done or said to change the outcome.”

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Wallace does not argue that BNSF was the sole cause of his injuries. Instead, he
takes responsibility for his part in the accident and argues that the district court erred by
dismissing his claim because there is a factual question as to whether BNSF also
contributed to the cause of his injuries. Wallace has maintained that BNSF was causally
negligent by failing to pro vide a reasonably safe work environment. See Bailey v. Cent.
Vt. Ry., 319 U.S. 350, 352, 63 S. Ct. 1062, 1063 (1943) (providing that railroads must use
reasonable care in furnishing employees with a safe place to work). Again, we must view
the evidence i n the light most favorable to Wallace. The record reveal s that, under the
relaxed causation standard, there is a genuine issue of material fact as to whether BNSF
was, at least in part, causally negligent.
Wallace argues first that BNSF was negligent b y providing rusty tools and
equipment for the welders to use and that , because Wallace was required to maintain the
equipment, BNSF should have known of the dangers involved in doing so. The record
shows that the welding tools and the truck BNSF provided Wallace were rusted and needed
constant maintenance. Wallace’s welding partner testified that his work crew always has
a lubricant with them to lubricate the doors of the truck and the tools because “they get
hard to open” and the lubricant “ loosens them up.” Wallace’s supervisor had received
multiple complaints about the truck Wallace used and testified that i t needed regular
maintenance. While welders are required to maintain their tools, BNSF does not give them
any designated time in their schedule to maintain their tools. As lead welder, Wallace was
responsible for “maintaining the equipment in good operating condition,” “servicing the
equipment on a timely basis,” “keeping the equipment in good repair,” and “keep[in g] the

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truck in good repair.” Wallace’s supervisor indicated that welders could come in early or
stay late to maintain their tools but would have to be approved for overtime.
Wallace also argues that BNSF was negligent by providing welders with the highly
flammable lubricant, Deep Cree p, to de-rust the equipment. BNSF provides Deep Creep
to its employees for cleaning and maintaining tools. Wal lace’s supervisor testified that
Wallace did not violate any BNSF rules on the day of the incident. There is no BNSF rule
regarding the use of Deep Creep, or other lubricants, on the job site. BNSF has a safety
sheet on the use of Deep Creep , but Wallace’s supervisor had no recollection of ever
reviewing the safety sheet and did not print it to hand it out to any of his supervisees. The
safety data sheet that Wallace never reviewed indicates that the lubricant is flammable and
users should “[w]ear suitable protectiv e equipment during handling.” According to
Wallace’s supervisor, the only non-flammable cleaning supply BNSF provides its welders
is soap. But as the supervisor testified, “soap doesn’t take away the rust very easily.”
Wallace further contends that BNSF was negligent by failing to provide him with
flame-retardant welding pants and protective screens. BNSF does not provide welders with
welding pants, but Wallace’s supervisor indicated that if Wallace had asked for welding
pants, he would have received them. But nothing in the record indicates that BNSF had
welding pants available on site for welders to use. According to BNSF’s safety rules, other
types of welding require welders to use a protective screen to prevent sparks from flying .
But BNSF does not explain why the safety rules do not require a protective screen for the
type of welding Wallace was assigned.

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Finally, Wallace argues t hat BNSF was negligent by failing to staff the welding
crews with a safe number of employees. Wallace testified that when he first started welding
for BNSF, the welding crews were made of three people: a lead welder, a second welder,
and a welder helper. Wallace alleged that when BNSF reduced its operating expenses,
welding teams no longer were assigned a welder helper and were only made up of two
people. Wallace stated that if there had been a welder helper on his team that day, he would
have been able to perform his job requirements of maintaining the equipment and listening
to the radio for incoming trains, while the welder helper could have been assisting and
watching his welding partner as he welded.
When viewing the above evidence in the light most favorable to Wallace, we hold
that a genuine issue of material fact exist s as to whether BNSF failed to provide a
reasonably safe workplace that contributed to the cause of Wallace’s injuries. This is
especially true in light of FELA’s relaxed causation standard . While it appears that
Wallace’s conduct was a contributing cause to his injuries, the district court failed to
address whether BNSF also contributed to the cause of his injuries. On this record, where
there is at least a scintilla of evidence that BNSF’s negligence may have contributed to
Wallace’s injuries, we conclude that this issue must be submitted to a jury. For the
foregoing reasons, we reverse the district court’s summary judgment decision and remand
for further proceedings.
Reversed and remanded.