           Case: 16-10864   Date Filed: 11/21/2016   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-10864
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 4:13-cv-00307-HLM



CHRISTOPHER GARY SWOOPE,

                                                            Plaintiff-Appellant,

                                  versus

CSX TRANSPORTATION, INC.,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (November 21, 2016)

Before WILLIAM PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:
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       Christopher Swoope, a train engineer for CSX Transportation, Inc. (“CSX”),

brought a claim against CSX under the Federal Employers Liability Act (“FELA”),

45 U.S.C. § 51 et seq., after the train he was working on hit a tree that had fallen

across the tracks. The district court granted partial judgment as a matter of law in

favor of CSX on Swoope’s negligence per se claim, and allowed Swoope’s

remaining claim of ordinary negligence to go to a jury. The jury found in favor of

CSX on that claim. Our careful review of the record persuades us to affirm the

district court.

                                            I.

       Christopher Swoope was an engineer for CSX. On April 28, 2013, he was

working as the engineer for a train going from Etowah, Tennessee to Manchester,

Georgia. Another train had gone down the same tracks two hours earlier.

However, when Swoope’s train approached Ranger, Georgia, Swoope saw

something on the tracks that looked to him like a bush. It wasn’t a bush though—it

was a newly fallen live tree. The train’s conductor testified that it was a “huge

tree,” and he feared it might come through the windshield when the train hit it.

       Swoope shared that fear. He thought about hitting the emergency brakes on

the train, but did not do so because of the heavy rain earlier that day. The tracks

were wet, his train was on a curve, and he thought applying the emergency brakes

might cause the train to derail. About three seconds before hitting the tree he


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decided to put the train in the first service break position to slow it down and he

got up from his seat to get onto the floor in case part of the tree did come through

the windshield. While getting up, Swoope fell on his side, and he stayed there on

the floor until impact. The train collided with the tree, bending its grab irons, but it

did not derail.

      Swoope did not report any physical injuries immediately after the accident.

By the time he arrived in Manchester, Georgia, he had a mild headache that he

thought little of. Over the next two days though, he testified that he started

experiencing painful back spasms. He reported them to his supervisor at CSX,

who took him to get medical treatment. Eventually, Swoope got back surgery to

mitigate the pain and returned to work. He continues to experience some back pain

from time to time though with varying intensity.

      Swoope then brought this suit against CSX under FELA, 45 U.S.C. § 51 et

seq., a federal statute that imposes liability on railroad common carriers for any

employee’s injury caused by the carrier’s negligence. See 45 U.S.C. § 51.

Swoope alleged both ordinary negligence and negligence per se, based on

violations of duties imposed by the Federal Railroad Administration (“FRA”)

regulations. Swoope filed his case in the Eastern District of Tennessee, but the

parties jointly moved to transfer the case to the Northern District of Georgia, Rome




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Division under 28 U.S.C. § 1404(a) because the accident happened in that judicial

district.

       Before trial, Swoope sought partial summary judgment on liability for a

violation of 49 C.F.R. § 213.37 (“vegetation regulation”) but was denied by the

district court. A jury trial took place from February 22–24, 2016. After the parties

presented their evidence, they each sought judgment as a matter of law based on

the so-called vegetation regulation theory of liability. The district court judge

denied Swoope’s motion for judgment as a matter of law and granted CSX’s

motion for judgment as a matter of law, finding that that there was “no evidence

[to] support[] a claim that the vegetation regulation has been violated in this case.”

Thus, Swoope’s negligence per se claim was not submitted to the jury, but his

ordinary negligence claim was allowed to proceed. The jury found in favor of

CSX on this remaining claim.

                                          II.

       Swoope appeals, claiming that (1) the district court should have granted his

motion for partial summary judgment; (2) the district court should have granted his

motion for judgment as a matter of law based on the vegetation regulation theory

of liability; and (3) the district court should have denied CSX’s motion for

judgment as a matter of law. Swoope argues that the district court erred in its

interpretation and in its application of the vegetation regulation. He also argues


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that under any interpretation, the district court erred in granting judgment as a

matter of law to CSX when there was evidence that could have supported a jury’s

finding that the vegetation regulation was violated.

      As a threshold matter, we do not review the pretrial denial of Swoope’s

motion for partial summary judgment in his favor, because he cannot appeal that

order after there was a full trial on the merits. Pensacola Motor Sales Inc. v. E.

Shore Toyota, LLC, 684 F.3d 1211, 1219–20 (11th Cir. 2012) (citing Ortiz v.

Jordan, 562 U.S. 180, 183–84, 131 S. Ct. 884, 888–89 (2011)).

      We review de novo the denial of judgment as a matter of law before

submission to a jury, and “disturb the jury’s verdict only when there is no material

conflict in the evidence, such that no reasonable person could agree to the verdict

reached.” Bhogaita v. Altamonte Heights Condominium Ass’n, 765 F.3d 1277,

1285 (11th Cir. 2014). We also review de novo the grant of judgment as a matter

of law, applying the same standard as that applied by the district court: judgment as

a matter of law “is appropriate when a plaintiff presents no legally sufficient

evidentiary basis for a reasonable jury to find for him on a material element of his

cause of action.” Christopher v. Florida, 449 F.3d 1360, 1364 (11th Cir. 2006).

“But if there is substantial conflict in the evidence, such that reasonable and fair-

minded persons in the exercise of impartial judgment might reach different

conclusions, the motion must be denied.” Id. (quotation omitted).


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                                           A.

      Swoope argues that CSX is strictly liable under FELA due to negligence per

se based on a violation of the vegetation regulation, which states in relevant part:

“Vegetation on railroad property which is on or immediately adjacent to roadbed

shall be controlled so that it does not . . . [i]nterfere with railroad employees

performing normal trackside duties.” 49 C.F.R. § 213.37. Swoope says that the

district court improperly read into the regulation a requirement that the

vegetation’s roots be on railroad property. He emphasizes that this limitation was

particularly improper because FELA is a “remedial statute” that courts should

liberally construe in favor of injured workers. Swoope also says that the district

court improperly read a notice requirement into the vegetation regulation.

      We need not address all of Swoope’s contentions because we agree with the

district court that the vegetation regulation includes a notice requirement for

liability. See United States v. Chitwood, 676 F.3d 971, 975 (11th Cir. 2012)

(“[W]e may affirm for any reason supported by the record. . . .” (quotation

omitted)). The vegetation regulation was promulgated by the Federal Railroad

Administration (“FRA”). See 49 C.F.R. § 213.37. The FRA, a part of the

Department of Transportation, is statutorily mandated by Congress to prescribe

regulations including track safety standards. 49 U.S.C. § 20142. As a federal


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agency, the FRA is entitled to deference to its decisions within the subject matter

delegated to it by Congress. See Chevron U.S.A. Inc. v. Nat. Res. Def. Council,

Inc., 467 U.S. 837, 843–44, 104 S. Ct. 2778, 2782 (1984). And rules resulting

from the notice-and-comment rulemaking process are particularly deserving of

Chevron deference. See United States v. Mead Corp., 533 U.S. 218, 229–31, 121

S. Ct. 2164, 2172–73 (2001).

      The FRA’s 1998 Final Rule, 63 Fed. Reg. 33,992 (Jun. 22, 1998), sets out a

“knowledge standard” limiting liability for track owners to “non-compliance or

civil penalties for only those defects that they knew about or those that are so

evident the railroad is deemed to have known about them.” Id. at 33,995. The

FRA’s Final Rule says that this exception is unique to track safety standards

because railroads cannot anticipate so as to prevent defects resulting from

unpredictable effects like weather. Id.

      Swoope argues that the notice requirement does not apply here because of

Kernan v. Am. Dredging Co., 355 U.S. 426, 78 S. Ct. 394 (1958), where the

Supreme Court described FELA as a remedial statute that courts should liberally

construe to provide recovery for injured workers. See id. at 431–32, 78 S. Ct. at

398. Swoope says that Kernan dictates that only the plain words of the regulation

should be read, and that a federal agency’s goals or statements in the Federal

Register have no effect on the text of the regulation in the FELA context. We


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agree that FELA is a remedial statute, and that “a FELA employer’s violation of a

statutory or regulatory duty gives rise to FELA liability . . ., regardless of whether

the statute or regulation was meant to protect against the particular harm sustained

by the employee.” Schmitz v. Canadian Pac. Ry. Co., 454 F.3d 678, 683 (7th Cir.

2006). But a violation still must occur, and there is no violation here without

notice. The FRA said in its final rule—which is substantively different than the

FRA’s goals or statements in the Federal Register—that the railroad track owner

must have notice for a violation to occur. The final rule is part of the regulatory

scheme, and its requirements limit not only the FRA, but also anyone arguing that

a violation of the regulation has occurred.

      FELA liability premised upon negligence per se must be subject to the same

limitations set by the FRA regulations. If it isn’t a violation for the FRA, it can’t

be a violation for FELA. Therefore, we turn to whether CSX had notice, in order

to determine if a violation occurred here.

                                          B.

      Swoope argues that even if the vegetation regulation does require notice, the

district court erred in granting partial judgment as a matter of law in favor of CSX

and should have granted judgment as a matter of law in his favor instead. To

overturn the grant of judgment as a matter of law in favor of CSX, Swoope must

show that there was a legally sufficient evidentiary basis for a reasonable jury to


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find for him. Christopher, 449 F.3d at 1364. To earn a grant of judgment as a

matter of law in his favor, Swoope must show that there was no material conflict in

the evidence such that no reasonable person could agree to the verdict reached.

Bhogaita, 765 F.3d at 1285.

      There was a material conflict in the evidence about whether CSX had notice

of a violation of the vegetation regulation. The district court recognized in its

summary judgment order that there was a genuine material question of fact

whether CSX should have known that healthy trees could fall on the tracks after

heavy rain, in such a way as to pose a danger to the train crew. At trial, Swoope

presented evidence about the weather on the date of his injury arguing there was

reason for CSX to have known that the tree could fall on the tracks. On the other

hand, CSX presented evidence that there had been no weather alerts for that part of

the track and that another train had passed through the same track just two hours

before. Because there was a material conflict in the evidence, the district court was

correct to deny Swoope’s motion for partial judgment as a matter of law.

      For there to be a legally sufficient evidentiary basis for a reasonable jury to

find for him, Swoope needed to show that CSX had notice, or in other words,

actually knew or should have known that there was vegetation obstructing the train

when Swoope was injured. See 63 Fed. Reg. 33,992, 33,995 (Jun. 22, 1998). No

evidence was presented at trial indicating that CSX had actual knowledge of the


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tree on the tracks, so Swoope’s claim rests on showing that CSX should have

known the tree was there. It is true that because a reasonable jury could have

found that CSX should have known that a healthy tree could have fallen on the

tracks, the district court may have erred in granting partial judgment as a matter of

law on Swoope’s negligence per se claim in CSX’s favor. But any possible error

by the district court in deciding partial judgment as a matter of law on negligence

per se grounds was harmless because the jury decided this same issue when

reaching its verdict on Swoope’s ordinary negligence claim, for which he was

required to make at least the same showing in proving whether CSX “should or

could reasonably have [] anticipated” the accident. See Perrine v. Fredericks, 786

F.2d 1068, 1070 (11th Cir. 1986) (holding there is no harm done by granting

judgment as a matter of law where the party still “had the opportunity to fully

advance their contention” to the jury). We affirm the district court.

      AFFIRMED.




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