                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0212n.06

                                         Case No. 19-6035

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                   FILED
 SHELDON CARMON,                                        )                     Apr 15, 2020
                                                        )                DEBORAH S. HUNT, Clerk
         Plaintiff-Appellant,                           )
                                                        )
                v.                                      )      ON APPEAL FROM THE
                                                        )      UNITED STATES DISTRICT
 CSX TRANSPORTATION, INC.,                              )      COURT FOR THE MIDDLE
                                                        )      DISTRICT OF TENNESSEE
       Defendant-Appellee.                              )
 _______________________________________

BEFORE: BATCHELDER, GIBBONS, and SUTTON, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. CSX Transportation, Inc. (CSX) employed

Sheldon Carmon as a welder and, while on the job, Carmon tripped on a signal wire that was

partially above ground, fell, and sustained serious injuries. Carmon sued CSX pursuant to the

Federal Employers Liability Act (FELA), 45 U.S.C. §§ 51-60, claiming that CSX was negligent

in its installation, inspection, and maintenance of the signal wire, and thereby failed to provide him

with a safe workplace. CSX moved for summary judgment, asserting that Carmon had no

evidence concerning the installation of the wire, much less that it was done negligently; could not

rebut CSX’s proffered evidence of its inspection practices; and could not show that its maintenance

was negligent because he had no evidence that CSX had actual or constructive knowledge that this

particular wire was out of place or posing a danger. The district court agreed, finding that Carmon

“has not carried his burden to show that [CSX] had actual or constructive notice of the alleged

exposed signal wire, a necessary element for his claim of negligence under FELA,” and granted

summary judgment.       Carmon v. CSX Transportation, Inc., No. 3:17-cv-00966, 2019 WL
Case. No. 19-6035, Carmon v. CSX Trans.


3857895, at *5 (M.D. Tenn. Aug. 15, 2019) (“[Carmon]’s conclusory and unsupported assertions

are insufficient to create a genuine issue of material fact and defeat summary judgment.”).

Carmon appealed, arguing that the district court’s assessment of the evidence was incorrect and

that he had produced sufficient evidence to create a genuine question of material fact for

determination by a jury and to overcome summary judgment. Carmon also raises a new theory

on appeal that he did not raise to the district court; namely, that Carmon’s coworker, who was with

him when he tripped and fell, had seen the exposed wire but had failed to warn Carmon and,

Carmon argues, that failure was negligence imputable to CSX. But for “rare circumstances,”

which are neither argued nor present in this case, we do not consider arguments raised for the first

time on appeal. Swanigan v. FCA US LLC, 938 F.3d 779, 787 (6th Cir. 2019).

       After carefully reviewing the law, the arguments before the district court, and the record

evidence, we conclude that the district court correctly assessed the proffered evidence and

correctly applied the law to it. The issuance of a full written opinion by this court would serve no

useful purpose. Accordingly, for the reasons stated in the district court’s opinion, we AFFIRM.




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