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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 19, 2013

                                       No. 12-30406                        Lyle W. Cayce
                                                                                Clerk

AMY AVERY SAMPSON, Individually and on behalf of KAS and TLS,

                                                  Plaintiff – Appellant
v.

GATX CORPORATION; CLIFTON KIRBY; HONEYWELL
INTERNATIONAL INCORPORATED,

                                                  Defendants – Appellees



                   Appeals from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 5:10-CV-1834


Before JOLLY, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Amy Avery Sampson, widow of Shannon Sampson, sued GATX
Corporation, GATX employee Clifton Kirby, and Honeywell International
Incorporated, alleging defendants’ negligence caused her husband’s death inside
the tank of a railcar he had entered to inspect and photograph as part of his
employment. The magistrate judge issued memorandum rulings recommending
the grant of summary judgment on behalf of all defendants. Based on that


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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recommendation, the district court dismissed all claims. We AFFIRM the
judgment of dismissal as to defendants GATX and Clifton Kirby. With respect
to Honeywell, however, we hold that genuine issues of material fact exist as to
whether Honeywell breached its duty to Shannon Sampson, a deceased employee
of GATX, and, if so, whether the breach caused his death.          We therefore
REVERSE the district court’s grant of summary judgment in Honeywell’s favor,
and REMAND the case for further proceedings not inconsistent with this
opinion.
                                        I.
      General American Transportation Corporation (“GATX”) leases, operates,
and manages railcars, as well as marine vessels and other equipment. GATX is
a leader in the railcar leasing industry and controls one of the largest privately
owned railcar fleets in the world, with approximately 132,000 railcars in North
America and Europe. One of GATX’s customers is Honeywell International, Inc.
(“Honeywell”), a major American company that makes household and industrial
products, including a refrigerant gas known as Genetron 22 (“G-22”). As part of
its business, Honeywell leased GATX tank railcars to transport G-22.
      In connection with this relationship, on May 10, 1982, GATX and
Honeywell entered into a “car service contract” (the “Agreement”), which
provides:
      [W]ith respect to any car, [Honeywell] shall return such car to
      GATX in the same condition complete with all parts, equipment and
      accessories as when initially delivered to [Honeywell], ordinary wear
      and tear excepted, and cleaned of commodities; but nothing herein
      shall be construed as relieving GATX from its obligation to maintain
      the cars as provided [elsewhere in the Agreement].
(emphasis added). The Agreement defines “cleaned of commodities” to mean:
      [C]leaned of all commodities and accumulations and deposits caused
      by commodities to the effect that there is no measurable amount of



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       such commodities, accumulations and deposits remaining in the car
       and the car is safe for human entry.
(emphasis added). The Agreement does, however, contemplate the situation
where the customer returns a railcar to GATX without cleaning it to the agreed-
upon standards, providing that: “Notwithstanding the foregoing [requirements],
Customer shall pay service charges . . . for any returned car if Customer has not
caused the car to be cleaned of commodities.”
       The Agreement also provides that GATX may provide cleaning services
pursuant to a separate “car cleaning contract” attached to the Agreement. The
car cleaning contract provides that “upon the forwarding or movement by
Customer of any car to a GATX facility,” the customer “shall represent to GATX”
one of the following three things, depending on the condition of the car: that the
car never carried hazardous waste; the nature and amount of hazardous
material contained in the car; or “that the car has been cleaned of commodities
(as defined in the Car Service Contract).” Thus, on the one hand, the Agreement
requires Honeywell to return the car cleaned and “safe for human entry;” if it
fails to do so, however, it states that Honeywell will be charged.
       The tank railcar that is the subject of this case was marked as GATX
25031. Honeywell had leased the car and cleaned it on February 21, 2010 before
returning it to GATX. Honeywell employees described the cleaning procedures
used, testifying that after removing the remaining refrigerant, there would still
be residual organic material from the G-22 inside the car’s atmosphere. To
eliminate that organic material, Honeywell used a “nitrogen pad” to displace the
organic material inside the car.1 The nitrogen pad would be used until a test


       1
         The purpose of a nitrogen pad is to remove the organic material from the chamber of
a rail car, thus cleaning the car for further use. Normally, once a pad absorbs the organic
material, the car is “vented” in order to expel the nitrogen from the railcar. Once the car is
vented, a “four-gas crowcon,”which indicates the oxygen level inside the car, is used to tell if
the car has nitrogen remaining.

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showed that the residual material in the car was at a safe level, meaning less
than 1,000 parts per million.
      The report on GATX 25031 indicates that Honeywell employees swept the
car with nitrogen and received an acceptable result. This result, however, does
not imply that there was no nitrogen remaining. Honeywell then issued a
cleaning certificate for the railcar stating that the car had been “internally
cleaned” on February 21, 2010, but the certificate did not specify that nitrogen
had been used, nor did it indicate that the railcar contained safe levels of oxygen.
      Shannon Sampson worked as a Senior Service Field Specialist for GATX
in Minden, Louisiana and had received annual training on the safety protocols
for inspecting railcars. GATX had an OSHA-mandated Confined Space Program
in place that prohibited employees from entering a railcar without first sampling
the oxygen level.2
      On March 12, 2010, Shannon Sampson and other GATX employees,
including his brother-in-law Jason Avery, were assigned to inspect and
photograph railcars at GATX’s Minden facility. Shannon Sampson was in
charge of the inspections, and his job required him to enter the tank cars and
take pictures. Both Avery and another employee, Trant Jackson, were wearing
safety harnesses, but Shannon Sampson was not. Normal safety procedures
required the employee who entered the cars to be attached to a safety extraction
device, but on the day in question, one of the two extraction devices at the
facility was being used elsewhere and the other one was out of service.
      With tragic results, Shannon Sampson did not test the interior of GATX
25031 before he entered (which Avery testified was unusual) because he was in



      2
        One part of the Confined Space Program stated, in relevant part, that employees
should “NEVER TRUST [THEI]R SENSES TO DETERMINE IF THE AIR IN A CONFINED
SPACE IS SAFE!,” warning that employees “CAN NOT SEE OR SMELL MANY TOXIC
GASES AND VAPORS, NOR [] DETERMINE THE LEVEL OF OXYGEN PRESENT.”

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“too big of a hurry.”         In its statement of uncontested facts, Honeywell
acknowledged that “the environment inside GATX 25031 was incapable of
supporting human life” and that, when Shannon Sampson entered, he was
“overcome by the hazardous environment” and was rendered unable to exit the
car, ultimately dying of asphyxiation. Avery testified that Sampson had begun
to climb back up the ladder to exit the car when he was overcome by the
environment inside the car, let go of the ladder, and hit his head on the side of
the car. Avery clarified that if the safety mechanism had been attached to
Shannon Sampson, the other two members of the team would have been able to
pull him out of the car once he fell off the ladder.
       Amy Avery Sampson, Shannon Sampson’s widow and the appellant here,
sued GATX, GATX employee Clifton Kirby (Shannon Sampson’s supervisor), and
Honeywell on behalf of herself and her two minor children.3                  All defendants
moved for summary judgment.4 The magistrate judge issued a memorandum
ruling recommending granting summary judgment for GATX and Clifton Kirby;5
the district court accepted the recommendation and dismissed all claims against
those defendants, holding that the Federal Employers’ Liability Act (FELA), 45

       3
       Sampson also named GATC Corporation and the Kansas City Southern Railway
Company, which transported GATX 25031, as defendants. The district court granted
summary judgment dismissing GATC Corporation and Kansas City Southern Railway
Company, and Sampson does not appeal these dismissals.
       4
        The case was brought in federal court because three of the original five defendants
removed the case, properly alleging that they were diverse in citizenship from Sampson, the
Louisiana plaintiff. See 28 U.S.C. § 1332(a)(1), § 1332(c), § 1441(a).
       5
        Although Sampson filed a notice of appeal from the district court’s grant of summary
judgment for GATX and Kirby, she does not assert any arguments regarding Kirby in her brief
on appeal. Therefore, she has waived her claims against Kirby. Matter of Texas Mortg. Servs.
Corp., 761 F.2d 1068, 1073 (5th Cir. 1985) (“Issues not raised or argued in the brief of the
appellant may be considered waived and thus will not be noticed or entertained by the court
of appeals”) (internal quotation marks omitted); FED. R. APP. P. 28(a)(9)(A) (“The appellant’s
brief must contain . . . [the] appellant’s contentions and the reasons for them, with citations
to the authorities and parts of the record on which the appellant relies.”). She argues only
that the district court erred in finding that GATX is not covered by the FELA.

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U.S.C. § 51, et seq., did not cover Sampson’s claims against GATX and that the
Louisiana Workers Compensation Act (“LWCA”), LA. REV. STAT. ANN. § 23:1031,
et seq., was Sampson’s exclusive remedy against GATX.6 Sampson timely
appealed.     The magistrate judge issued a separate memorandum ruling
recommending granting summary judgment for Honeywell; the district court
accepted the recommendation and dismissed all claims against it. On appeal,
Sampson argues that the district court erred in concluding that Honeywell had
no contractual duty to Shannon Sampson.7
       On this appeal, there are thus two issues: first, whether the court erred in
granting summary judgment on behalf of GATX and, second, whether it erred
in granting summary judgment to Honeywell.
                                             II.
       Before we reach the merit issues, however, we need to resolve the matter
of our jurisdiction. Ordinarily, a judgment entered by a district court in favor
of less than all parties in a lawsuit is not appealable until all other claims
affecting all other parties are finally resolved. FED. R. CIV. P. 54(b) (When an
action involves multiple parties, “any order . . . that adjudicates . . . the rights
and liabilities of fewer than all the parties does not end the action as to any of
the claims of parties . . . .”); see also FED. R. APP. P. 4(a)(2) (“A notice of appeal
filed after the court announces a decision or order – but before the entry of the
judgment or order – is treated as filed on the date of and after the entry.”).

       6
         GATX does not dispute its liability to Sampson under the LWCA. GATX had paid
$56,197.33 in benefits to Sampson and her children as of September 7, 2011, and represented
that it would continue to pay benefits “until an unforeseen time in the future per the terms
of the” LWCA.
       7
         Before the district court, Sampson also claimed what amounted to a “failure to warn”
on the part of Honeywell, alleging that Honeywell’s placarding was insufficient to warn of the
hazardous nitrogen environment inside the car. Because Sampson does not make any
argument disputing the district court’s ruling on her failure-to-warn claim, she has waived
that argument. See Matter of Texas Mortg. Servs. Corp., 761 F.2d at 1073; FED. R. APP. P.
28(a)(9)(A).

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Sampson filed her notices of appeal against GATX and Honeywell at different
times:
               Notice against GATX / Clifton Kirby – April 17, 2012
                    Notice against Honeywell – April 27, 2012
The court had entered judgment on the following dates:
                     GATX / Clifton Kirby – March 19, 2012
                          Honeywell – March 29, 2012
                     Kansas City Southern – April 18, 2012
Thus, because Sampson filed the notice against GATX on April 17, 2012, one day
before the district court ruled on the final motion for summary judgment by one
of GATX’s co-defendants, Kansas City Southern Railway – but after the court
had granted summary judgment motions on behalf of GATX and Honeywell –
there is some question as to whether her appeal to this court was premature.
      Review of our precedents, however, indicates that we have jurisdiction.
Young v. Equifax Credit Information Services presented a situation in which the
appellant filed its notice of appeal of a summary judgment grant to one of the
defendants; we noted that “the district court’s order was not a final judgment
because it neither disposed of the claims against all the defendants nor was it
certified as a final judgment pursuant to Fed. R. Civ. P. 54(b).” 294 F.3d 631,
634 n.2 (5th Cir. 2002). This court nonetheless concluded that it had jurisdiction
over the appeal, because “the order would have been appealable if the district
court had certified it pursuant to Rule 54(b) and because the district court did
subsequently (and prior to oral argument herein) dispose of all remaining parties
and claims.” Id. (citing Barrett v. Atlantic Richfield Co., 95 F.3d 375, 379 (5th
Cir. 1996)).
      GATX concedes that under the precedent of Young, the court has
jurisdiction over Sampson’s appeal of the summary judgment grant to GATX
even though the notice of appeal was technically premature. As in Young, the

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order here could have been certified as final under Rule 54(b), and, as in Young,
the district court subsequently disposed of the claims against the only remaining
defendant (Kansas City Southern Railway) – one day after Sampson filed her
notice of appeal as to GATX. Under relevant precedent, we have jurisdiction
over the appeal.
                                        III.
      In reviewing a grant of summary judgment, this court applies the same
standard as the district court. F.D.I.C. v. Ernst & Young, 967 F.2d 166, 169 (5th
Cir. 1992). This court reviews questions of law de novo and reviews the record
in the light most favorable to the non-movant. Id. Summary judgment is proper
where “after adequate time for discovery . . . [the non-movant] . . . fails to make
a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Id.
Summary judgment is appropriate if there is no genuine dispute as to any
material fact in the case and the moving party is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(a).
                                        IV.
      First, we consider whether the district court erred in granting summary
judgment on behalf of GATX. Before the district court, Sampson made two
arguments regarding why workers’ compensation under the LWCA was not her
only remedy against GATX: first, GATX (through its employee Clifton Kirby)
had committed an intentional tort, and second, GATX was subject to claims
under the FELA.      The district court found that Sampson did not oppose
summary judgment on whether Kirby’s actions rose to the level of an intentional
tort and therefore granted summary judgment in favor of GATX and Kirby on
that issue. As discussed above, Sampson has waived that issue by not briefing
it on appeal. Thus, the only remaining issue as to GATX is whether Sampson
can assert a claim against GATX under the FELA.

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      The district court found that Sampson failed to assert a claim under the
FELA against GATX because GATX was not a “common carrier by railroad”
under the terms of the statute. We agree. FELA tethers liability to a party
qualifying as a “common carrier”:
      Every common carrier by railroad . . . shall be liable in damages to
      any person suffering injury while he is employed by such carrier in
      [interstate] commerce, or, in case of the death of such employee, to
      his or her personal representative, for the benefit of the surviving
      widow or husband and children of such employee . . . 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 (emphasis added). The Supreme Court, in turn, has defined a
“common carrier by railroad” as “one who operates a railroad as a means of
carrying for the public, – that is to say, a railroad company acting as a common
carrier.” Edwards v. Pacific Fruit Exp. Co., 390 U.S. 538, 540 (1968) (inset
quotation marks omitted). We similarly have defined a “common carrier” as “one
who holds himself out to the public as engaged in the business of transportation
of person or property from place to place for compensation, offering his services
to the public generally . . . [and] undertakes to carry for all people indifferently,
and hence is regarded in some respects as a public servant.” Lone Star Steel Co.
v. McGee, 380 F.2d 640, 643 (5th Cir. 1967). It is clear that GATX meets neither
definition.
      In Edwards, the Court held that the Pacific Fruit Express Company,
which “owns, maintains, and leases refrigerator cars to railroads to transport
perishable products in commerce,” was not a common carrier under the FELA.
Edwards, 390 U.S. at 539. In making that determination the Court held that
“there exist a number of activities and facilities” such as the leasing and
maintenance of railcars “which, while used in conjunction with railroads and

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closely related to railroading, are yet not railroading itself.” Id. at 540. In the
Court’s view, renting refrigerator cars to railroads did not qualify as business
conducted by a common carrier. Id.
       Sampson argues that the Supreme Court’s analysis in Edwards was based
on Pacific Fruit’s specific function in the “niche industry” of providing “reefer”
or “refrigerated” cars to railroads, and its holding is limited to defendants
serving that particular function and does not encompass railcar companies that
lease a variety of railcars. Sampson argues that GATX leases and maintains
132,000 rail cars, not simply “reefer cars.” Sampson, however, provides no
principled reasoning as to why the basic analysis of Edwards should not apply
also to companies like GATX that lease railcars generally. See Willard v.
Fairfield Southern Co., 472 F.3d 817, 821 (11th Cir. 2006) (plaintiff did not “meet
his burden of presenting affirmative evidence that [the defendant] is a common
carrier” when the “evidence indicates that [the defendant] does not hold itself out
to the public as providing rail service for hire”); Greene v. Long Island R.R. Co.,
280 F.3d 224, 235 (2d Cir. 2002) (“Companies that have no corporate affiliation
or agency relationship with a railroad and merely supply the railroad with
equipment such as refrigeration cars . . . are not ‘carriers’ within the meaning
of FELA.”); Gaulden v. Southern Pacific Co., 174 F.2d 1022 (9th Cir. 1949)
(affirming district court’s determination that a freight car lessor was not a
common carrier).
       In McGee, we laid out four factors to consider when determining whether
a company is a common carrier.8 380 F.2d at 647. The first and only factor we

       8
         Those factors are (1) actual performance of rail service, (2) the service being performed
is part of the total rail service contracted for by a member of the public, (3) the entity is
performing as part of a system of interstate rail transportation by virtue of common ownership
between itself and a railroad or by a contractual relationship with a railroad, and hence such
entity is deemed to be holding itself out to the public, and (4) remuneration for the services
performed is received in some manner, such as a fixed charge from a railroad or by a percent
of the profits from a railroad. McGee, 380 F.2d at 647.

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need to consider in this case is whether there is “actual performance of rail
service.” Id. Sampson argues that GATX performs rail services because it “is
engaged in the business of transportation, maintenance and repair of 132,000
railcars from place to place throughout the United States and beyond.”
However, Sampson has provided no evidence that GATX itself transports the
railcars (as opposed to making the cars available for transport by railroad
companies). Sampson’s record citations do not indicate that GATX performs
functions other than the maintenance, repair, and lease of railcars to railroads
and other customers. A GATX witness testified that GATX leases cars to
customers and the cars then “ride on other people’s rails.”
      In the light of the Supreme Court’s decision in Edwards, our test in
McGee, and decisions of other courts declining to find that railcar companies are
covered under the FELA, we hold that GATX is not a “common carrier by
railroad” under the FELA, and the district court did not err in granting
summary judgment to GATX for that reason. See McCrea v. Harris County
Houston Ship Channel Nav. Dist., 423 F.2d 605, 609 (5th Cir. 1970)
(determination that defendant did not perform rail service under prong one of
the Lone Star test foreclosed appellant’s claim that defendant was a rail carrier
under FELA). Thus, we affirm the judgment of the district court dismissing
Sampson’s claims against GATX.
                                       V.
      We now turn to address Sampson’s claims against Honeywell and
determine whether the district court erred in dismissing those claims. The
initial question we ask is: which state law governs the scope of the duty that
Honeywell may have owed Shannon Sampson.             Before the district court,
Sampson briefed the duty under Louisiana law. Now on appeal she argues, for
the first time, that Illinois law applies because the Agreement (between



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Honeywell and GATX) provides that it “shall be governed by and construed
under the laws of the State of Illinois.”
      In determining which state’s law applies in a diversity case, a federal
district court applies conflicts of law principles of the forum state, here
Louisiana. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Under
Louisiana’s choice-of-law rules, contracting parties generally have the freedom
to choose which state’s law will govern disputes arising out of the contract.
Cherokee Pump & Equip. Inc. v. Aurora Pump, 38 F.3d 246, 250 (5th Cir. 1994);
see also LA. CIV. CODE ANN. art. 3540. “Louisiana allows parties to stipulate in
their contracts which state’s laws are to govern them.” Technical Industries, Inc.
v. Banks, 419 F. Supp. 2d 903, 908 (W.D. La. 2006) (inset quotation marks
omitted). Here, the parties chose Illinois law to govern the contract, and
Sampson’s alleged tort claim must spring from duties that contract imposed, if
any. That would seem to end the matter as far as choice of law is concerned.
      Except, however, for a problem Honeywell is quick to point out. As noted
above, Sampson did not plead Illinois law in her complaint, nor did she raise it
before the district court; she initially cited Louisiana law, and normally, that
would mean that she waived her argument that Illinois law governs this appeal.
See Fruge v. Amerisure Mut. Ins. Co., 663 F.3d 743, 747 (5th Cir. 2011) (where
a plaintiff “briefed only Louisiana law before the district court” and “never
assert[ed] that [another state’s] law should apply or that the district court
should engage in a choice-of-law analysis,” the choice-of-law argument was
waived). If Louisiana and Illinois law reached different outcomes, the finding
of waiver would be material to this appeal. Based on the narrow issue presented
for our review, however, the choice between applying Illinois law and Louisiana
law does not make a difference in the ultimate outcome because, as the parties




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agree, the differences in the relevant law are nonconsequential.9 Because we are
a court of review, we review only the judgment and supporting arguments raised
before the district court; thus, we will consider Sampson’s claim against
Honeywell under Louisiana law. See Celanese Corp. v. Martin K. Eby Constr.
Co., 620 F.3d 529, 531 (5th Cir. 2010) (“The general rule of this court is that
arguments not raised before the district court are waived and will not be
considered on appeal.”); see also Kucel v. Walter E. Heller & Co., 813 F.2d 67, 74
(5th Cir. 1987) (Plaintiff “does have an obligation to call the applicability of
another state’s law to the court’s attention in time to be properly considered.”).
       We thus turn to whether the district court erred in granting Honeywell
summary judgment under Louisiana law.                    After considering Sampson’s
somewhat legally confusing claim, the district court concluded that the specific
nature of the allegation was tort: Honeywell, Sampson argues, breached a duty
of care owed to the decedent under the railcar lease agreement. Upon evaluating
the claim, the district court held that “It does not appear from a reading of the
lease and the evidence presented that the provision about cleaning railcars was,
in any way, intended to create a duty under tort law.” Instead, “this contract
created a contractual duty for Honeywell to return the cars clean so as to
allocate the cost of cleaning the railcars to Honeywell and not GATX.” Thus,
because the contractual requirement that Honeywell return railcars to GATX
“safe for human entry” was part of a general cost-of-cleaning scheme,10 the
district court reasoned that no tort duty sprung from the contract, and thus

       9
        As we will see, both Illinois and Louisiana courts have endorsed § 324A of the
Restatement (Second) of Torts, which is the basis for Sampson’s cause of action. See infra n.
13.
       10
         For example, the Agreement states that “[Honeywell] shall pay service charges for
any car not promptly returned pursuant to the terms hereof or for any returned car if
[Honeywell] has not caused the car to be cleaned of commodities.” Further, it asserts that
“GATX may provide cleaning services with respect to some or all of the cars” pursuant to a
separate Car Cleaning Contract.

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Honeywell could not have been negligent. Our main job today is to review de
novo the legal basis of that holding.
       On appeal, Sampson argues that the district court erred by ignoring
language in the Agreement whereby Honeywell undertook two affirmative
obligations: first, to return all cars to GATX “cleaned of commodities,” which is
defined to mean “safe for human entry,” and, second, to indemnify and hold
harmless GATX from and against all claims for personal injury or death that
GATX may incur from Honeywell’s failure to comply with the contractual terms.
Thus, according to Sampson’s brief, the district court ignored the plain terms of
the contract under which “Honeywell agreed that it would make the car safe for
human entry and that if it failed to do so, it would be solely responsible for any
damage caused by its failure to do so.” In Sampson’s view, the district court
erred by essentially holding the requirement that Honeywell return the car clean
and “safe for human entry” to be mere surplusage.
       Sampson further argues in her brief before us that her husband, an
employee of GATX, was a third-party beneficiary of the Agreement and thus may
assert rights based on breaches of it. But her arguments before the district court
were based in the tort of negligence,11 not in contract; so Sampson has waived
the third-party beneficiary argument. Celanese Corp., 620 F.3d at 531. That
does not mean, however, that her claim against Honeywell collapses. Although
we may not consider her third-party beneficiary argument, her tort claim –
although inartfully pled and, at times, hard to decipher – has been sufficiently


       11
          For example, in her petition for damages, Sampson said that her husband’s death
was “proximately and legally caused by the fault and negligent acts and omissions of . . .
Honeywell . . . including . . . [t]he breach of [a] legally imposed duty of care . . . .” (emphasis
added). In her opposition to Honeywell’s motion for summary judgment, Sampson noted that
the starting point for her tort liability claim comes from LA. CIV. CODE ART. 2315 and argued
that “By agreeing to the[] contractual provisions [in the Agreement] Honeywell undertook a
heightened duty designed to protect against the very injury and damage herein sued upon.”
(emphasis added).

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                                          No. 12-30406

preserved.12 Therefore, we consider only whether, under Louisiana law, the
Agreement gave rise to a tort duty owed to a third party like Shannon Sampson
or whether, as the district court held, the requirement that Honeywell return the
car “cleaned of commodities” and “safe for human entry” merely concerned cost
allocation.
       Sampson cites Section 324A of the Restatement (Second) of Torts as the
basis for finding such a duty.13 Section 324A represents a common law doctrine
that “has existed for centuries and has traditionally been used to impose liability
upon an actor who has failed to exercise reasonable care when it undertook to
perform a duty owed to a third party.”14 Bujol, 922 So. 2d at 1128. This so-called

       12
           It is true that Sampson has difficulty in precisely categorizing her claims: before the
district court, she made a variety of allegations, some of which sounded in tort, and, before us,
her third-party beneficiary argument, though mislabeled, uses tort liability language.
Therefore, while her categorization has been confusing, the basis of liability in tort has been
consistent. Admittedly, however, our considerable labor in deciphering the true nature of
Sampson’s claim lie somewhat in tension with the idea that a court should not have to make
a litigant’s argument for her. Nonetheless, we have concluded that, given Sampson’s repeated
allegations of tort liability, see supra n.11, she has come “close enough” to stating a plausible
claim that we may consider it to be one based in tort under Louisiana law.
       13
         In so doing, however, she presents her claim rather inartfully. Sampson cites Illinois
(rather than Louisiana) case law applying REST. 2D TORTS § 324A, Pippin v. Chicago Housing
Authority, 78 Ill. 2d 204, 210 (Ill. 1979). Nevertheless, such case law overlaps with Louisiana
precedent, which has applied the same provision to suits originating in Louisiana. See, e.g.,
Bujol v. Entergy Servs., Inc., 922 So. 2d 1113, 1128 (La. 2004). For the reasons stated above,
we apply Louisiana law to Sampson’s case. Cf. Graham v. Milky Way Barge, Inc., 923 F.2d
1100, 1109 (5th Cir. 1991) (applying §324A to a diversity case under Louisiana law).
       14
            Section 324A states:
                 One who undertakes, gratuitously or for consideration, to render
                 services to another which he should recognize as necessary for the
                 protection of a third person or his things, is subject to liability to the
                 third person for physical harm resulting from his failure to exercise
                 reasonable care to protect his undertaking, if
                        (a) his failure to exercise reasonable care increases the risk of
                        such harm, or
                        (b) he has undertaken to perform a duty owed by the other to the
                        third person, or
                        (c) the harm is suffered because of reliance of the other or the
                        third person upon the undertaking.

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                                       No. 12-30406

“voluntary assumption” doctrine suggests that, once a party voluntarily renders
services to another, it may not unnecessarily increase the risk of harm. See In
re FEMA Trailer Formaldehyde Prods. Liab. Litig., 838 F. Supp. 2d 497, 513
(E.D. La. 2012). To recover under Section 324A under Louisiana law, a plaintiff
must prove that
       the defendant (1) undertakes to render services, (2) to another, (3)
       which the defendant should recognize as necessary for the
       protection of a third person. Even if a plaintiff proves the
       assumption of a duty under that standard and that the defendant
       failed to exercise reasonable care to perform this undertaking, he
       can only recover if he further proves that either (a) the defendant’s
       failure to exercise reasonable care increased the risk of such harm;
       or (b) the defendant has undertaken to perform a duty owed by the
       employer to the injured employee; or (c) harm is suffered because of
       reliance of the employer or the injured employee upon the
       undertaking.
Bujol, 922 So. 2d at 1129-30.
       Here, Sampson has offered evidence under each of the necessary factors
and has made a prima facie showing under § 324A sufficient to survive summary
judgment. First, Honeywell, through a contract, “undertook to provide” to GATX
the service of cleaning the car to the standard of “safe for human entry.”
Honeywell knew or should have recognized that cleaning the car until it was safe
for human entry was necessary for the protection of persons, who, like Shannon
Sampson, were employees charged with entering and inspecting the car once it
had been returned.15 Second, Sampson has offered sufficient evidence to create
a dispute of material fact that Honeywell was negligent (“failed to exercise



       REST. 2D TORTS § 324A (2012).
       15
         There is at least a genuine issue of material fact whether Honeywell “should have
known” that its cleaning service was necessary for the protection of third parties because the
Agreement’s plain terms equate human safety with Honeywell’s performance under the
contract, and the Agreement contemplates that Honeywell would indemnify GATX for
personal injury or death claims.

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                                         No. 12-30406

reasonable care”) by transmitting GATX 25031 with a cleaning certificate even
though the car was not safe for human entry.16 Third, Sampson has put forth
additional evidence that Honeywell’s negligence was the proximate cause of the
injury,17 essentially arguing that Honeywell “increased the risk of harm.” Bujol,
922 So. 2d at 1137. “Some physical change to the environment” is sufficient to
prove an increased risk of harm. Id. at 1135 (quoting Patentas v. United States,
687 F.2d 707, 717 (3d Cir. 1982)). Here, there is some evidence that Honeywell’s
application of a nitrogen pad to the railcar altered the physical environment of
the car.18 That alteration may not have been the only cause of Shannon
Sampson’s death because there is substantial evidence that his failure to follow
proper safety procedures also played a role in the accident;19 Shannon Sampson’s
agency in the causation of his death is a matter for determination at trial. But
Sampson has put forth enough evidence on this last factor to survive summary
judgment.


       16
          Although Honeywell presented evidence that cars were considered “clean” even
though a nitrogen pad may have been applied during the cleaning process, other witnesses
testified that whether or not a nitrogen pad was applied was relevant information to be
included on a cleaning certificate and that, when nitrogen pads are used, oxygen is displaced
from the railcar chamber, making the environment hazardous. On cleaning certificates, it now
indicates whether or not nitrogen was used in cleaning. The conflicting testimony is enough
to raise a genuine issue regarding negligence in relation to the cleaning certificate.
       17
            A plaintiff can establish proximate cause by showing that one of the three
subsections of § 324A applies. Johnson v. Abbe Engineering Co., 749 F.2d 1131, 1133 (5th Cir.
1984); see also Bujol, 922 So. 2d at 1130 n.18. The three subsections are (1) defendant’s failure
to exercise reasonable care increased the risk of harm, or (2) defendant undertook to perform
a duty owed by the employer to the employee, or (3) the plaintiff’s harm was a result of
reliance by the employer or the injured employee upon the undertaking. Johnson, 749 F.2d
at 1133. At issue here is subsection (1).
       18
          For example, Clifton Kirby testified that the low level of oxygen in the car was
unusual and that “In the two and a half years that I was [at GATX’s Minden facility], I do not
remember any car setting off our monitors” as GATX 25031 did when its oxygen levels were
tested after the accident involving Shannon Sampson.
       19
            The matter of comparative fault is not a matter before us in this appeal.

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                                 No. 12-30406

      Thus, the district court erred because its characterization of the relevant
terms of the Agreement as cost allocation provisions ignores their clear
language, which establishes a duty that Honeywell may have negligently
breached by returning GATX 25031 unsafe for human entry and failing to note
that a nitrogen pad had been used on the cleaning certificate.
      In sum, we hold that Sampson has made a prima facie case under § 324A
to support an allegation against Honeywell of negligence in applying a nitrogen
pad and returning the car without marking the potential hazard on the cleaning
certificate, an action which sufficient evidence shows altered the physical
environment inside the car, which Honeywell had an obligation to make safe for
human life, and such alleged negligence may have increased the risk of Shannon
Sampson’s death.
                                      VI.
      For the above reasons, we affirm the district court’s summary judgment
on behalf of GATX.      Dismissal of Sampson’s claims against GATX was
appropriate because GATX is not a “common carrier” under the FELA. However,
we further hold that the district court erred in granting summary judgment on
behalf of GATX’s co-defendant Honeywell because there remains a genuine issue
of material fact whether Honeywell was negligent under Restatement (Second)
of Torts § 324A. On remand, the court will determine whether the tort duty
established by the Agreement was breached by Honeywell and whether that
breach was a cause of Shannon Sampson’s death.
      The judgment of the district court regarding Clifton Kirby and GATX is
therefore affirmed; the judgment regarding Honeywell is reversed; and the case
is remanded for further proceedings not inconsistent with this opinion.
                                                           AFFIRMED in part;
                                       REVERSED in part; and REMANDED.



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