UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ERNEST L. MESSING,
Plaintiff-Appellant,

v.

CSX TRANSPORTATION,
INCORPORATED,
Defendant-Appellee,

and                                                            No. 98-1516

UNION TANK CAR COMPANY; OLIN
CORPORATION,
Defendants,

v.

BURRIS CHEMICAL, INCORPORATED,
Third Party Defendant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CA-96-188-MU)

Argued: December 2, 1998

Decided: January 15, 1999

Before WILLIAMS and MOTZ, Circuit Judges, and MICHAEL,
Senior United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John F. Ayers, III, DELANEY & SELLERS, P.A., Char-
lotte, North Carolina, for Appellant. John R. Jolly, Jr., POYNER &
SPRUILL, L.L.P., Raleigh, North Carolina, for Appellee. ON
BRIEF: Robert C. Dortch, Jr., DELANEY & SELLERS, P.A., Char-
lotte, North Carolina, for Appellant. Cynthia V. McNeely, POYNER
& SPRUILL, L.L.P., Charlotte, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Ernest Messing sued CSX Transportation, Inc., Union Tank Car
Co., and Olin Corp. for personal injuries sustained in a railroad car
accident, asserting negligence and negligence per se under North Car-
olina tort law. The district court granted summary judgment to the
defendants. The court reasoned that the Federal Railway Safety Act
preempted Messing's state tort claims and, alternatively, even if not
preempted, Messing had forecast insufficient evidence tending to
show that the defendants' negligence caused his injuries to prevail on
any of these claims. For the reasons discussed below, we affirm.

I.

On May 23, 1994, Ernest Messing sustained severe injuries in a
railroad car accident at the Burris Chemical plant in Charlotte, North
Carolina. At the time of the accident, Burris employed Messing. Bur-
ris's Charlotte plant is located adjacent to CSX Transportation, which
owns the main railroad line thereon. Burris owns and maintains the
siderail or spur leading directly to the Burris plant, which was still
under construction at the time of the accident.

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Sometime prior to the date of the accident, Olin Chemical shipped
an order of caustic soda in tank car UTXL 25324 to Burris for use in
its production of bleach. Union Tank Car Co. manufactured and
owned the tank car used for this shipment; Olin leased the car from
Union Tank Car. On May 19, 1994, CSX Transportation delivered the
shipment to the Burris plant, where it parked the tank car on Burris's
sidetrack and set the car's hand brake.

Four days later, on May 23, Burris instructed employees Messing,
Bruce Garren, and plant manager Duane Outhwaite to move tank car
UTXL 25324 from its position on the siderail to a position closer to
the plant, in order to assist a contractor working on construction of the
facility. Burris did not ask CSX to move the tank car nor did the com-
pany inform CSX of the activity until after the accident. Instead, Bur-
ris employees attempted to move the car independently.

In order to move the car, the men had to detach car UTXL 25324
from the adjacent car by pulling a pin out of the coupling device that
held the cars together. They therefore needed to create some slack in
the coupling device. Outhwaite, Messing, and Garren used a "pinch
bar" as a lever to try to inch the car toward its neighbor and create
the necessary slack. Before beginning this task, Outhwaite visually
inspected the hand brakes on the car and noted that they were fully
set and holding. As Garren and Messing attempted to move the car
using the pinch bar, Outhwaite tried to release the hand brake using
its wheel. Unable to slowly back off the brake as expected, Outhwaite
fully released the brake and then reset it so that the brake was close
to but not fully "tied down". Outhwaite repeated this procedure sev-
eral times while Garren and Messing attempted to nudge the car for-
ward. When Messing finally moved the car, Outhwaite pulled the pin
and uncoupled the cars.

Outhwaite testified that he expected the car to remain stationary
following the uncoupling procedure, held in place by the hand brake.
Once unleashed, however, tank car UTXL 25324 began to move
down the track toward Messing. Garren soon alerted Outhwaite that
Messing was trapped under the car. Outhwaite ran to the platform and
tightened the hand brake as much as he could -- a few more clicks
-- but the car continued to roll. It eventually stopped approximately

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35-40 feet down the track, with Messing pinned underneath. Injuries
sustained in the accident led to the amputation of Messing's left leg.

Messing alleges common law negligence on the part of all defen-
dants and negligence per se against defendant CSX for violating the
hand brake standards set forth in the Federal Safety Appliance Act.
See 45 U.S.C.A. § 11 (1986) (repealed 1994 and recodified at 49
U.S.C.A. § 20302 (1997)). The defendants counter that Messing has
failed to forecast evidence sufficient to make out a claim for common
law negligence or negligence per se and that, even if Messing had
enough evidence to sustain such charges, the Federal Railway Safety
Act (FRSA) preempts his state tort claims. Because we conclude that
Messing has failed to forecast sufficient evidence to make out a claim
under North Carolina law, we need not address the question of
whether the FRSA would preempt valid state law claims in this con-
text.

II.

Messing alleges negligence against all defendants. In North Caro-
lina, "[t]he elements of a cause of action based on negligence are:
[1] a duty, [2] breach of that duty, [and 3] a causal connection
between the conduct and the injury and actual loss." Davis v. North
Carolina Dept. of Human Resources, 465 S.E.2d 2, 6 (N.C. App.
1995). Even if we assume, for purposes of summary judgment, that
defendants owed a legal duty to Messing in this context -- that of
providing an efficient hand brake on the tank car-- Messing has
failed to forecast any evidence that the defendants breached this duty
or that such a breach was the proximate cause of Messing's injuries.
To demonstrate breach, Messing must show that the hand brake did
not "conform to the standard required." Id. (internal quotation marks
omitted). To prove proximate cause, he must show that it was reason-
ably foreseeable to a "person of ordinary prudence," that such a defec-
tive hand brake would cause injury to a person in Messing's position.
Id. (internal quotation marks omitted). Messing has utterly failed to
forecast such evidence.

None of the experts in this case was able to point to any evidence
of a defect in the hand brake's design or functioning that might have
caused the accident. Nor could the experts articulate any reasonable

                    4
act or omission on the part of defendants that would have prevented
the occurrence. Indeed, the experts made numerous suggestions as to
the possible causes of the accident, but each was vague and unsub-
stantiated. No evidence in the record before us connects any of these
proffered causes to an act or omission on the part of any of the defen-
dants.

For example, Messing argues that defendants breached their duty
because they failed to inspect the car properly. However, Messing's
own expert, Colon Fulk, explained that a visual inspection would not
have revealed all potential causes of the brake failure, such as the
need for lubrication or the presence of foreign debris in the mecha-
nism, and that defendants were not required to perform a more
through inspection in this circumstance. Moreover, it is undisputed
that Outhwaite performed his own visual inspection before attempting
to move the tank car and found no deficiencies in the brake system.
Hence, Messing has forecast no evidence that defendants, exercising
reasonable care, should have learned of these possible defects.

Finally, even if defendants breached their duty to Messing, he has
proffered no evidence that such a breach was the proximate cause of
his injuries. To the contrary, Messing's experts were unable to con-
nect the only evidence of a malfunctioning hand brake -- Outhwaite's
inability to slowly loosen the brake -- to the cause of the accident.
The experts' suggestions therefore remain mere theories without con-
nection to defendants' conduct; these are insufficient to defeat sum-
mary judgment. See Hinkle v. City of Clarksburg , 81 F.3d 416, 423
(4th Cir. 1996) (claim "based on a theory without proof" was "ripe for
an adverse summary judgment determination").

Messing's claim of negligence based on defendant CSX's failure
to bunch the slack between the rail cars likewise must fail because he
has forecast no evidence tending to show that CSX knew or should
have known that Burris employees would try to move the cars from
the spur on their own. In fact, Outhwaite testified at his deposition
that Burris had never used the pinch bar to move cars at the Charlotte
site prior to the day of the accident. Outhwaite also explained that
Burris intended to allow CSX to move the tank cars onto the site as
they were needed. The pinch bar was to be used to move the cars "no
more than a couple of feet" in order to precisely align the cars to the

                    5
mechanisms at the plant. Burris employees moved the tank car
involved in Messing's accident from its stationary position on the sid-
erail in order to accommodate a contractor; this was not a typical
maneuver that CSX should have anticipated. See Bolkhir v. North
Carolina State Univ., 365 S.E.2d 898, 901 (N.C. 1988).

The record thus contains no evidence tending to show that defen-
dants knew or should have known either that the hand brake was not
functioning properly or that Burris employees would attempt to move
the car from the spur.

Finally, Messing's claim of negligence per se against defendant
CSX must also fail. Messing claims that CSX violated the Federal
Safety Appliance Act because the hand brake on tank car UTXL
25324 was inefficient at the time of the accident. See 49 U.S.C.A.
§ 20302. Violation of a safety statute constitutes negligence per se in
North Carolina. See e.g., Hart v. Ivey , 420 S.E.2d 174, 177 (N.C.
1992); Lamm v. Bissette Realty, Inc., 395 S.E.2d 112, 114 (N.C.
1990). Messing has offered expert testimony that car UTXL 25324's
hand brake was inefficient at the time of the accident. Evidence of the
violation alone, however, is not enough to impose liability on defen-
dant CSX. In order to make a claim for negligence per se in North
Carolina, the plaintiff must show that the defendant knew or should
have known that the statute had been violated, that the defendant
failed to remedy the violation, and that the violation was the proxi-
mate (i.e. foreseeable) cause of the injury suffered by plaintiff. See
Lamm, 395 S.E.2d at 114. Again, Messing's failure to show that CSX
knew or should have known of any fault or inefficiency in the hand
brake is fatal to his claim.

III.

Accordingly, the district court's order granting summary judgment
to defendants is

AFFIRMED.

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