                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 99-3205
                                   ___________


Lloyd Francisco,                        *
                                        *
      Plaintiff-Appellant,              *
                                        *
            v.                          *
                                        * Appeal from the United States
Burlington Northern Railroad            * District Court for the
Company, a Corporation,                 * District of Nebraska
                                        *
            Defendant.                  *
                                        *
Burlington Northern Santa Fe            *
Railroad Company,                       *
                                        *
      Defendant-Appellee.               *
                                   ___________

                              Submitted: January 27, 2000

                                  Filed: February 17, 2000
                                   ___________

Before McMILLIAN, BOWMAN and LOKEN, Circuit Judges.
                         ___________

McMILLIAN, Circuit Judge.
       Lloyd Francisco appeals from a final order entered in the United States District
Court1 for the District of Nebraska granting summary judgment in favor of Burlington
Northern Santa Fe Railway Company (Burlington Northern) on his claim pursuant to
the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. See Francisco v.
Burlington Northern Santa Fe R.R. Co., No. 4:98CV3025 (D. Neb. July 12, 1999)
(memorandum and order) (hereinafter "slip op."). For reversal, Francisco argues that
the district court erred in holding that there is no genuine issue of fact, and Burlington
Northern is entitled to judgment as a matter of law, on the question of whether
Burlington Northern's negligence contributed to injuries sustained by Francisco as a
result of being hit on the head with a hard hat by his supervisor, Al Green, on
September 10, 1997. For the reasons stated below, we affirm.

       Jurisdiction was proper in the district court based on 45 U.S.C. § 56 and 28
U.S.C. § 1331. Jurisdiction is proper in this court based on 28 U.S.C. § 1291. The
notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a).

       Francisco brought this FELA action in the district court, alleging that Burlington
Northern had negligently failed to provide a safe place to work. The gravamen of his
complaint is the allegation that he was subjected to a "daily ritual of horseplay in the
power room, including Green's hitting, 'goosing,' shoving, and kicking the workers he
supervised." Brief for Appellant at 4. Burlington Northern moved for summary
judgment on the ground, among others, that the evidence failed as a matter of law to
support a finding that Burlington Northern knew or should have known about Green's
allegedly dangerous propensities. In support of its motion, Burlington Northern
submitted portions of Francisco's deposition, taken on March 9, 1999. In opposition
to the motion, Francisco submitted his own affidavit, as well as the affidavits of two co-
workers, Randy Emry and Jerry Fazel. See Joint Appendix at 113-18 (affidavits


      1
       The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.

                                           -2-
notarized May 15, 1999). Upon review, the district court granted Burlington Northern's
motion for summary judgment, and Francisco appealed.

       Francisco argues on appeal that, when the evidence is viewed in the light most
favorable to him, it is reasonable to infer that Burlington Northern knew or should have
known about Green's daily ritual of "horseplay" and abusive conduct, and, therefore,
Burlington Northern reasonably could have anticipated exactly the type of harm he
suffered. We disagree.

       We review a grant of summary judgment de novo. The question before the
district court, and this court on appeal, is whether the record, when viewed in the light
most favorable to the non-moving party, shows that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

       The FELA imposes upon employers a "continuous duty to provide a reasonably
safe place to work." Ackley v. Chicago & North Western Transp. Co., 820 F.2d 263,
267 (8th Cir. 1987). The duty of care is non-delegable, and it becomes more onerous
as the risk to the employee increases. See id. Where an employee is injured as a
result of an unprovoked assault by a fellow employee, the employer cannot be held
liable under the FELA unless the aggressor was acting within the scope of his or her
employment or the employer's negligence contributed to the injury. See Sheaf v.
Minneapolis, St. Paul & S.S.M. R.R. Co., 162 F.2d 110, 113 (8th Cir. 1947). In the
present case, it is not alleged that Green was acting within the scope of his employment
when he hit Francisco on the head. The only question is whether Burlington Northern's
negligence contributed to Francisco's injuries. Under the negligence standard, "[t]he
employer's conduct is measured by the degree of care that persons of ordinary,
reasonable prudence would use under similar circumstances and by what these same
persons would anticipate as resulting from a particular condition." Ackley, 820 F.2d

                                          -3-
at 267. In other words, Burlington Northern owed a duty of care to Francisco only if
there was "reasonable foreseeability of harm." Id.

       In their affidavits, Francisco, Emry, and Fazel stated that Green's treatment of
other employees included, among other things, hitting, pinching, and shoving, as well
as grabbing and kicking at the buttocks and groin area of other employees. In addition,
Emry and Fazel each stated that one of Green's supervisors, Oris Smith, was present
when some of these alleged incidents occurred, and Fazel stated that another of Green's
supervisors, Earl Bauer, was present on one such occasion.2

       Upon review, we agree with the district court's conclusion that Emry and Fazel
are not qualified to testify as to what Smith and Bauer actually saw and that their
affidavits indicate at best that Smith and Bauer were each present on at least one
occasion when Green engaged in some form of "horseplay." See slip op. at 4 nn.1&2.
More importantly, though, Emry's and Fazel's bare allegations that Smith and Bauer
were present during one or more unspecified acts of "horseplay" by Green – even
assuming they actually saw the alleged "horseplay" – is too generalized and vague to
establish a genuine issue of fact as to whether Burlington Northern knew or should
have known about a working condition which created a foreseeable risk of injury to its
employees.

       Furthermore, in his sworn deposition, Francisco clearly admitted that he never
complained about Green's conduct prior to the date of his injuries, September 10, 1997,
that he never received any complaints about Green's conduct in his capacity as the


      2
       Randy Emry's affidavit states: "During some of the above referenced incidents,
I have personally observed the presence of Oris Smith, and observed Mr. Smith
witnessing these incidents." Joint Appendix at 116. Jerry Fazel's affidavit states:
"During some of the 'horseplay,' I have seen Oris Smith there to see the 'horseplay'"; he
additionally states: "One time I saw Earl Bauer see Al Green's 'horseplay.'" Id. at 117.

                                          -4-
union representative, that he had never seen Green get physically violent, and that he
had never even heard of Green striking anyone or hurting anyone prior to
September 10, 1997. See Joint Appendix at 57-58, 78-79. While he later made the
contradictory statements in his affidavit that, prior to September 10, 1997, he had
observed Green hitting, pushing, shoving, etc., other employees, that Green had kicked
him several times, and that he saw Green hit a co-worker on the head with a hard hat,
nothing in his affidavit suggests that Burlington Northern knew or should have known
about any of these alleged incidents.3 In sum, Francisco failed to establish a genuine
issue of fact as to whether Burlington Northern knew or should have known about an
unsafe or potentially unsafe working condition resulting from Green's alleged daily
ritual of "horseplay" and physical contact with co-workers. Consequently, a jury would
have no basis on which to conclude that Burlington Northern reasonably could have
foreseen harm to an employee such as Francisco.4 See Lager v. Chicago Northwestern
Transp. Co., 122 F.3d 523, 525 (8th Cir. 1997) ("Absent a reasonable inference that
the railroad was aware of Bradish's alleged violent tendencies, a jury would have no
evidence from which to conclude that Bradish's alleged assault and battery on Lager
was reasonably foreseeable by the railroad."). Accordingly, we hold that the district
court did not err in granting summary judgment in favor of Burlington Northern.


      3
       Faced with apparent contradictions in Francisco's sworn statements, the district
court considered whether there was any evidence of confusion or mistake on the part
of Francisco at the time he gave his deposition. Finding none, the district court
appropriately decided to disregard Francisco's affidavit to the extent it directly
contradicted his deposition testimony. See slip op. at 5 n.3 (citing Camfield Tires, Inc.
v. Michelin Tire Corp., 719 F.2d 1361, 1366 (8th Cir. 1983) (absent evidence of
confusion or mistake when being deposed, party could not create a genuine issue of fact
merely by submitting an affidavit which directly contradicted his earlier harmful
deposition testimony)).
      4
        We need not address the dubious proposition that the "horseplay" and other
physical conduct alleged by Francisco could even create the sort of dangerous condition
in the work place from which a reasonable foreseeability of harm could be inferred.

                                          -5-
The judgment of the district court is affirmed.

A true copy.

      Attest:

          CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -6-
