                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 26 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MICHAEL R. SCHAEFER,

                Plaintiff-Appellant,

    v.                                                    No. 98-8066
                                                    (D.C. No. 97-CV-207-J)
    UNION PACIFIC RAILROAD                                 (D. Wyo.)
    COMPANY, a Utah corporation,

                Defendant-Appellee.




                            ORDER AND JUDGMENT           *




Before TACHA , BARRETT , and BRORBY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Michael R. Schaefer appeals from an order of the district court

granting defendant ’s motion for summary judgment. We affirm.

       Mr. Schaefer was employed by       defendant for twenty-five years as a

signalman. In 1995, he began experiencing shoulder pain. He was diagnosed

with glenohumeral arthritis secondary to hypoplastic glenoids, a congenital

abnormality which prevented him from continuing to work. He applied for and

received a disability award from the Railroad Retirement Board.

       Mr. Schaefer then filed this action pursuit to the Federal Employer’s

Liability Act, 45 U.S.C.   §§ 51-60 (FELA), alleging negligence by defendant

because it had provided unsafe working conditions. Mr. Schaefer alleged

defendant should have provided proper, suitable, and sufficient tools, machinery

and equipment, and adequate manpower. He also contended          defendant had not

provided proper supervision and instruction or reasonably safe procedures; had

failed to warn him of potentially dangerous conditions; and was otherwise

negligent, careless and inattentive to safety issues.

       The district court granted    defendant ’s motion for summary judgment

holding that Mr. Schaefer had presented no evidence that defendant could have

foreseen the harm that resulted to    him. The court concluded that Mr. Schaefer

had not met his obligation to set forth specific facts showing that defendant

should have known that he was at risk for developing the injury he experienced.


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      On appeal, Mr. Schaefer argues that because he had foreseen the dangers

of his job and had warned his supervisors about them, his injury was foreseeable.

Mr. Schaefer also asserts defendant should be liable because FELA was enacted

to liberally permit recovery for injured workers thus requiring that he present only

slight evidence of potential harm, a standard he met.

      “We review the entry of summary judgment de novo, drawing all

reasonable inferences in favor of the nonmovants.” Hulsey v. Kmart, Inc., 43

F.3d 555, 557 (10th Cir. 1994). The moving party must show there is no genuine

issue as to any material fact and it is entitled to judgment as a matter of law. See

id. The nonmovant must establish, at a minimum, an inference that each element

essential to the case is present. See id.

      FELA was enacted to supplant the common-law duty of the master to his

servant with a duty imposing liability for any injury or death which occurs at

work and which is due in any manner to the employer’s negligence.       See Summers

v. Missouri Pac. R.R. Sys. , 132 F.3d 599, 607 (10th Cir. 19 97); see also 45

U.S.C. § 51. 1 Therefore, in FELA cases, the issue before the court is “‘narrowly


1
             Every common carrier by railroad . . . shall be liable in
      damages to any person suffering injury while he is employed by such
      carrier . . . for such injury . . . 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, . . . or other
                                                                           (continued...)

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limited to the single inquiry [of] whether . . . the conclusion may be drawn that

negligence of the employer played any part at all in the injury or death.’”

Summers, 132 F.3d at 606 (quoting Rogers v. Missouri Pacific R.R.            , 352 U.S.

500, 506-08 (1957)). Thus, the FELA plaintiff must prove “the common law

elements of negligence, including duty, breach, foreseeability, and causation.”

Williams v. National R.R. Passenger Corp.       , 161 F.3d 1059, 1062 (7th     Cir. 1998);

see also Gallick v. Baltimore & O. R.R.       , 372 U.S. 108, 117 (1963) (showing that

injury was reasonably foreseeable is “essential ingredient” for establishing

negligence under FELA).      The “employer is not liable if it has no reasonable way

of knowing that a potential hazard exists.”         Williams, 161 F.3d at 1062 (citing

cases).

         Mr. Schaefer contends he has met this requirement because he had

informed his supervisors that his job had the potential for injury. However, he

has not proved that defendant knew or should have known of “conditions which

created a likelihood that petitioner, in performing the duties required of him,

would suffer just such an injury as he did      .” Rogers , 352 U.S. at 503 (footnote

omitted) (emphasis added);     see also Ellis v. Union Pac. R.R. , 329 U.S. 649, 653


1
    (...continued)
          equipment.

45 U.S.C. § 51


                                              -4-
(1947) (FELA liability will not be imposed based solely on fact that injury

occurred as FELA “does not make the employee the insurer of” its employees’

safety at work); Kuberski v. New York Cent. R.R.   , 359 F.2d 90, 93 (2d Cir. 1966)

(fact that injury occurred cannot alone provide proof of negligence on part of

defendant) .

      Mr. Schaefer did notify his supervisor that he feared he could be injured

because he did not have the proper equipment and he needed more people to assist

him. He complained that the tools were unsafe and that the materials were too

heavy to carry. These complaints relate to unsafe working conditions. He did not

notify his employer that any of his duties were causing him pain in his shoulders.

He has failed to show that defendant should have foreseen that he would have a

disabling shoulder condition caused, in part, by his routine duties of heavy lifting

and extreme stretching.




      The judgment of the United States District Court for the District of

Wyoming is AFFIRMED.




                                         -5-
      Entered for the Court


      James E. Barrett
      Senior Circuit Judge




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