                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-1134
ROBERT L. HOLBROOK,
                                          Plaintiff-Appellant,
                              v.

NORFOLK SOUTHERN RAILWAY
COMPANY,
                                          Defendant-Appellee.
                        ____________
          Appeal from the United States District Court for
      the Northern District of Indiana, South Bend Division.
    No. 3:02 CV 0439 RM—Robert L. Miller, Jr., Chief Judge.
                        ____________
   ARGUED SEPTEMBER 24, 2004—DECIDED JULY 8, 2005
                   ____________




  Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,
Circuit Judges.
  WILLIAMS, Circuit Judge. Plaintiff Robert L. Holbrook
sued his employer, defendant Norfolk Southern Railway
Company, under the Federal Employers’ Liability Act
(FELA) for damages he suffered on the job. In this appeal,
he challenges the district court’s grant of summary judg-
ment in Norfolk Southern’s favor, and its decision to strike
several photographs, but we find that he failed to establish
that Norfolk Southern knew of the dangerous condition that
caused his injury, and that a sufficient foundation was not
2                                               No. 04-1134

laid for the contested photos. We therefore affirm both
determinations of the district court.


                   I. BACKGROUND
  Holbrook has worked for Norfolk Southern since
October 10, 1967. Since 1981, he has worked as a road con-
ductor, primarily assigned to take trains on runs between
Elkhart, Indiana, and Chicago, Illinois. On December 23,
2001, Holbrook was preparing a freight train for departure
from Norfolk Southern’s Elkhart Yard by coupling air hoses
and climbing on rail car ladders to release hand brakes.
This work required him to occasionally step between the
rails of the tracks, which that day were covered by snow. As
he was working on one car, he swung his left foot around
and placed it on the bottom rung of a ladder attached to the
side of the car. His foot slipped, causing him to fall and
suffer an injury to his knee. While on the ground, he noticed
a sticky, oily substance on the rung, which he wiped off with
a paper towel. While Holbrook does not know whether the
substance was on the ladder before he came to it or tracked
onto it from somewhere else, he claims that it could only
have come from the Elkhart Yard because he only wears his
work boots (the shoes that he was wearing at the time of
the slip) when he is at work.
  Holbrook brought this cause of action against Norfolk
Southern pursuant to the FELA, 45 U.S.C. §§ 51 et seq.,
alleging that while in the course of performing his duties,
he was caused to slip due to a hazardous accumulation of oil
and thereby injured. The district court granted summary
judgment in favor of Norfolk Southern, finding that
Holbrook failed to establish that his injury was caused by
a dangerous condition of which the defendant had notice.
The lower court also granted the railroad’s motion to strike
photographs attached to the affidavit of one of Holbrook’s
No. 04-1134                                                 3

witnesses (Steven Filbert) that purported to depict accumu-
lations of oil in various parts of the Elkhart Yard. Holbrook
appeals.


                      II. ANALYSIS
A. Summary Judgment Properly Granted on FELA
   Claim
  The FELA provides that “[e]very common carrier by rail-
road . . . shall be liable in damages to any person suffering
injury while he is employed . . . 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.” 45 U.S.C.
§ 51. In so providing, “the FELA imposes on railroads a
general duty to provide a safe workplace.” McGinn v.
Burlington Northern R.R. Co., 102 F.3d 295, 300 (7th Cir.
1996) (citing Peyton v. St. Louis Southwestern Ry. Co., 962
F.2d 832, 833 (8th Cir. 1992)). Because it is meant to offer
broad remedial relief to railroad workers, a plaintiff’s
burden when suing under the FELA is significantly lighter
than in an ordinary negligence case. Lisek v. Norfolk &
Western Ry. Co., 30 F.3d 823, 832 (7th Cir. 1994); Harbin v.
Burlington Northern R.R., 921 F.2d 129, 131 (7th Cir.
1990). Indeed, a railroad will be held liable where “em-
ployer negligence played any part, even the slightest, in
producing the injury.” Rogers v. Missouri Pac. R.R. Co., 352
U.S. 500, 506 (1957). With this lighter burden of proof, a
plaintiff can more easily survive a motion for summary
judgment. Lisek, 30 F.3d at 832.
  The FELA does not, however, render a railroad an insurer
of its employees. Consol. Rail Corp. v. Gottshall, 512 U.S.
532, 543 (1994); Milom v. New York Cent. R.R. Co., 248 F.2d
52, 55 (7th Cir. 1957). Thus, a plaintiff must proffer some
evidence of the defendant’s negligence in order to survive
summary judgment. Lisek, 30 F.3d at 832 (citing Deutsch v.
4                                                No. 04-1134

Burlington Northern R.R. Co., 983 F.2d 741, 744 (7th Cir.
1993)). In particular, “[t]o establish that a railroad breached
its duty to provide a safe workplace, the plaintiff must show
circumstances which a reasonable person would foresee as
creating a potential for harm.” McGinn, 102 F.3d at 300. To
establish such foreseeability, a plaintiff must show that the
employer had actual or constructive notice of those harmful
circumstances. Williams v. Nat’l R.R. Passenger Corp., 161
F.3d 1059, 1063 (7th Cir. 1998) (“[A] FELA plaintiff injured
by a defective condition cannot recover damages without
showing that the employer had actual or constructive notice
of the condition.”).
  Here, the dangerous condition of which Norfolk Southern
must have had notice in order to be liable is the tiny dab of
grease—or its origins—that gave rise to Holbrook’s fall.
What we know from the evidence is that the dab somehow
ended up on the ladder, and that Holbrook slipped because
of it. But the evidence cannot confirm from where this
greasy substance came. This does not end our inquiry or
doom Holbrook’s claim, however, for once we accept that the
greasy substance was on the ladder at the time of his fall,
we are left with only two possibilities as to how it got there:
either Holbrook tracked it onto the ladder himself, or the
substance was on the ladder before he stepped on it.
Though Holbrook cannot say which scenario was in fact the
case, he argues that, in either event, Norfolk Southern
would have had notice of the condition.


    1. Actual Notice Not Established
  In the event that the grease was tracked onto the ladder
by his boots, Holbrook argues that the substance came from
conditions of which Norfolk Southern had actual no-
tice—namely, pools of oil that had accumulated between the
tracks throughout the Elkhart Yard. There is evidence that
such pools existed, at least at some point in time, and that
No. 04-1134                                                5

Norfolk Southern was aware of them. In particular,
Holbrook points to annual safety inspection reports filed
year after year with Norfolk Southern by Steven Filbert—a
Norfolk employee and Union representative—detailing
safety concerns posed by such accumulations of grease and
oil in the Yard, including the general area where he was
injured (the West End of track 5W). Though he cannot say
whether he stepped in any accumulation of oil on the day of
the accident, he has testified that he stepped in between the
tracks where such oil might be found several times in the
course of his duties. Furthermore, through the affidavits of
Filbert, Raymond Duffany (a railroad engineering expert),
and Jay P. Geary (the assistant terminal superintendent of
the Elkhart Yard), Holbrook proffered evidence suggesting
that, despite its knowledge of the dangerous conditions,
Norfolk Southern did nothing to prevent them.
  Even assuming that such pools of oil did accumulate at
various times throughout the life of the Elkhart Yard and
that Norfolk Southern did in fact have notice of them, such
assumptions alone would still fall short of sustaining
Holbrook’s claim. Rather, to succeed, Holbrook must not
only identify a dangerous condition of which the defendant
was aware, but also connect that known condition to his
injury. Indeed, Norfolk Southern’s notice of accumulated oil
pools would be wholly irrelevant to Holbrook’s claim absent
a showing that such known conditions in fact caused his
injury. Thus, in order to connect his injury to the known
condition, two further assumptions would be required: that
an accumulated oil pool was present on the day Holbrook
was injured, and that Holbrook in fact stepped in that
pool—or at least in its vicinity—before mounting the ladder.
Unwilling at the summary judgment stage to make these
further assumptions, the district court rejected Holbrook’s
claim, finding no evidence tying his injury (or, more pre-
cisely, the dab of grease that caused it) to those conditions
of which the defendant had actual knowledge.
6                                                  No. 04-1134

  Holbrook, however, insists that by requiring him to tie his
injury to those known conditions, the district court improp-
erly made it his burden to show definitively that the known
condition caused his injury. He argues that, instead, his
burden is merely to establish a reasonable inference that
those known dangerous conditions played a part in his
injury. In support of his position, he directs us to Gallick v.
Baltimore & Ohio R.R. Co., 372 U.S. 108 (1963). In Gallick,
the defendant railroad permitted a pool of stagnant water
to accumulate on its property, attracting a variety of
insects. Id. at 109. While in the vicinity of the pool, the
plaintiff (Gallick) was bitten by an insect, causing an injury
that ultimately led to the amputation of his leg. Id. Gallick
in turn brought a FELA claim against the railroad and
secured a jury verdict in his favor. Id. at 112. An appellate
court, however, overturned that verdict, finding that the
absence of direct evidence definitively connecting the
infectious insect to the stagnate pool on the railroad’s
premises—as opposed to the nearby putrid mouth of the
Cuyahoga River or other unsanitary places located on
properties neither owned nor controlled by the defendant—
left the plaintiff’s case unfit for a jury. Id.
  The Supreme Court disagreed, finding that the plaintiff
had presented an appropriate jury question—notwith-
standing the other possible sources of the deleterious
bug—by raising a reasonable inference that the fetid pool
played a part in his injury:
    Judicial appraisal of the proofs to determine
    whether a jury question is presented is narrowly
    limited to the single inquiry whether, with reason,
    the conclusion may be drawn that negligence of the
    employer played any part at all in the injury or
    death. . . . [I]f that test is met, [judges] are bound to
    find that a case for the jury is made out whether or
    not the evidence allows the jury a choice of other
    probabilities.
No. 04-1134                                                  7

Gallick, 372 U.S. at 116-17 (quoting Rogers v. Missouri Pac.
R.R. Co., 352 U.S. 500, 506-07 (1957)) (emphasis added).
With Gallick’s case properly before it, the jury could go on
to find that his injury was reasonably foreseeable, for it was
within the province of the jury to conclude that the railroad
“knew that the accumulation of the pool of water would
attract bugs and vermin to the area,” and thus “should have
realized the increased likelihood of an insect’s biting
petitioner while he was working in the vicinity of the pool.”
Id. at 118-19. Thus, under Gallick, if it would be reasonable
to conclude that the negligence of an employer played any
part in a plaintiff’s injury, then a question of employer
negligence fit for a jury is presented under the FELA,
regardless of the existence of other probable causes.
   Relying on Gallick, Holbrook insists that his case is also
fit to reach a jury, arguing that his evidence is sufficient at
least to establish a reasonable inference that the known
accumulated oil pools played a part in causing his injury.
There are parallels between Gallick and the case at bar.
In both cases, the plaintiffs could definitively identify the
harmful agent that caused their injuries—in Gallick, an
infectious insect, here a dab of grease—but not its source.
Indeed, in both cases the plaintiffs could do no better than
suggest a list of probable sources, both of which included
known dangerous conditions on their respective employers’
premises—in Gallick, a stagnant cesspool, here accumu-
lated pools of oil.
  But the parallels end here, for while Gallick’s evidence
could place the agent that caused his injury within the tem-
poral and physical vicinity of the dangerous condition of
which his employer knew, Holbrook’s evidence cannot. In
Gallick, no one disputed the very presence of the fetid pool,
or the plaintiff’s proximity to it at the time he was bitten by
the insect. Gallick had been bitten by the insect within two
seconds after walking away from the stagnant pool. Such
temporal and physical proximity to the known hazard
8                                              No. 04-1134

rendered reasonable the inference that the condition played
a part in Gallick’s injury. Surely, if Gallick had not been
able to establish the existence of a cesspool on his em-
ployer’s premises or his presence near it at the time he was
bitten by the insect, no reasonable inference could be drawn
that that cesspool might have played a part in his injury.
  In contrast, here Holbrook is not only uncertain whether
he stepped in oil that day, but also, due to snow-cover
across the Yard, unable to say whether there was even any
oil on the ground for him to step into. Holbrook simply
offers no evidence that he was in the vicinity of an accumu-
lated oil pool on the day of the accident, or that any such
accumulation even then existed. Because the plaintiff
cannot place himself within the temporal or physical vicin-
ity of the proffered, known dangerous condition, let alone
establish that condition’s very existence on the day of the
incident, it would not be reasonable to infer that putative
pools of accumulated oil in the Elkhart Yard played a part
in Holbrook’s injury. Thus, Holbrook has failed to establish
that Norfolk Southern had actual notice of the conditions
that caused his injury.


    2. Constructive Notice Not Established
  Alternatively, Holbrook argues that, in the event that the
grease was already on the ladder before he came to it,
Norfolk had constructive notice of that condition because
company procedure dictates pre-departure inspection of the
cars by railroad employees, and no one other than the
inspectors work with those cars before they come to
Holbrook for prep-work. Thus, according to the plaintiff, if
the grease was on the ladder before he came to it, the
inspectors should have discovered it.
  However, there is absolutely no evidence that the grease
was on the ladder before Holbrook stepped on it. And even
assuming that the grease was on the ladder before Holbrook
No. 04-1134                                                 9

stepped on it, there are a myriad of possible ways the
substance could have gotten onto the ladder between the
railcar’s inspection and its contact with Holbrook (e.g.,
splatter from a passing train on adjacent tracks, residue
from mounting by another employee). Holbrook himself
conceded that, if the dab of grease was on the ladder before
he stepped on it, it could have attached sometime after the
car’s inspection. Because plaintiff’s constructive notice
argument “rests on mere speculation and conjecture,” it too
must fail. See Deans v. CSX Transp., Inc., 152 F.3d 326, 330
(4th Cir. 1998) (affirming grant of summary judgment
against FELA plaintiff where plaintiff “introduced no evi-
dence to show that an earlier inspection would have
revealed or cured the [defective condition], or that the rail-
road had notice of the defect prior to the accident”).
  We briefly address, and for similar reasons reject,
Holbrook’s contention that notice is not even necessary to
establish his FELA claim. Here, he argues that if Norfolk
Southern is found, in its failure to clean up, to have created
the dangerous condition itself, see Lane v. Hardee’s Food
Sys., Inc., 184 F.3d 705, 707 (7th Cir. 1999), or to have
failed to provide a safe place to work, see Harp v. Illinois
Cent. Gulf R.R. Co., 370 N.E.2d 826, 828 (Ill. App. Ct.
1977), then he need not establish notice. Toward that end,
Holbrook contends that the Yard was in Norfolk Southern’s
exclusive control and its inaction in the face of numerous
complaints regarding the accumulation of oil throughout
the Yard would constitute active negligence. However, these
cases are inapposite to the case at bar, as there the hazards
created by the defendants’ action or inaction were the clear
cause of the plaintiffs’ injuries. Whether Norfolk Southern
responded to the complaints it received regarding the
accumulated pools of oil remains irrelevant because, again,
Holbrook has no evidence that the accumulations of which
the defendant had notice had anything to do with his
mishap.
10                                              No. 04-1134

  As Holbrook is unable to establish that Norfolk Southern
had actual or constructive notice of the condition that
caused his injury, we agree with the district court that his
FELA claim must fail, and therefore affirm the lower court’s
grant of summary judgment in defendant’s favor. Accord-
ingly, we need not reach the parties’ arguments regarding
Judge Hand’s algebraic formula for negligence from United
States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.
1947).


B. District Court Did Not Abuse Discretion in Strik-
   ing Photographs
  We next address the district court’s decision to strike the
photographs of unspecified portions of the Elkhart Yard—
photos which purport to provide “visual proof” that pools of
oil had accumulated between the tracks throughout that
Yard. We review the trial judge’s decision to strike these
photos, which were attached to the affidavit of Steven
Filbert, for an abuse of discretion. O’Regan v. Arbitration
Forums, Inc., 246 F.3d 975, 986 (7th Cir. 2001). “[D]ecisions
‘that are reasonable, i.e., not arbitrary, will not be ques-
tioned.’ ” Id. (quoting Adusumilli v. City of Chicago, 164
F.3d 353, 359 (7th Cir. 1998)).
  The district court struck the photos because it found them
irrelevant. Federal Rule of Evidence 401 provides that
evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determi-
nation of the action more probable or less probable than it
would be without the evidence.” According to the district
judge, Filbert’s photos failed to meet the Rule 401 standard
because they were undated and neither the photos nor
Filbert’s affidavit specified what part of the Yard they
depicted. In the absence of such foundation, the district
court reasoned, Holbrook could not foreclose the possibility
that these pictures depict a time and a place wholly irrel-
evant to the case at bar.
No. 04-1134                                                 11

  The district court here got it only half right, but, in this
case, that is enough to sustain its ruling. Contrary to the
district judge’s finding, Filbert’s affidavit sufficiently dated
the photos by indicating that they were taken prior to
Holbrook’s accident. Filbert states in his affidavit that the
“oil shown in these photographs shows some of the hazard-
ous conditions that existed in this area for a number of
years and before Mr. Holbrook’s accident.” (emphasis
added). So dated, the pictures could tend to establish that
Norfolk Southern—despite its assertions to the contrary—
did have notice of dangerous conditions created by accumu-
lated oil and grease on its own property prior to Holbrook’s
accident. What dooms the photos, however, is the absence
of foundation evidence suggesting that the conditions of the
tracks at the time of Holbrook’s alleged mishap were in the
same, or even similar, condition as depicted in the photo-
graphs. The district court noted that neither Filbert nor
Holbrook could say whether any of the proffered photos
captured the particular location where Holbrook suffered
his fall, or an accumulated pool of oil that may be blamed
for causing it. Nor, the district judge reasoned, was there
any proof that Holbrook ever walked in or near the location
depicted in the photos. Whether or not we think the district
court’s decision to strike the pictures was wrong, we cannot
say that it was unreasonable. The district court did not
abuse its discretion in granting defendant’s motion to strike
the photographs.


                    III. CONCLUSION
  For the reasons stated above, we AFFIRM the district
court’s decision to strike the photographs attached to
Filbert’s affidavit, and its grant of summary judgment in
favor of Norfolk Southern.
12                                       No. 04-1134

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—7-8-05
