                               FIRST DIVISION
                               BARNES, P. J.,
                           MERCIER and BROWN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      March 9, 2020




In the Court of Appeals of Georgia
 A19A2154. KEEN v. GEORGIA SOUTHERN & FLORIDA
     RAILWAY COMPANY.

      MERCIER, Judge.

      Richard Keen filed a personal injury lawsuit pursuant to the Federal Railroad

Safety Act (“FRSA”), 49 USC § 20101 et seq.1, and the Federal Employers Liability

Act (“FELA”), 45 USC § 51 et seq., against his employer, Georgia Southern &

Florida Railway Company (the “Railroad”). The trial court granted the Railroad’s

motion for summary judgment, and Keen appeals. For the following reasons, we

reverse in part and affirm in part.




      1
         Specifically, Keen argues that the Railroad violated 49 CFR § 213.33, a
FRSA regulation. See Gordon v. New England Central R., No. 2:17-cv-00154, *11
(II) (B) (3) (2019 WL 5084160) (D. Ver., Oct. 2019).
      “On appeal from the grant of summary judgment the appellate court conducts

a de novo review of the evidence to determine whether there is a genuine issue of

material fact and whether the undisputed facts, viewed in the light most favorable to

the nonmoving party, warrant judgment as a matter of law.” Georgia Southern &

Florida R. v. Peters, 284 Ga. App. 139, 140 (643 SE2d 786) (2007) (citation and

punctuation omitted).

      Viewed in the light most favorable to Keen, the record shows the following.

On November 6, 2013, Keen was working as a conductor for the Railroad. At the time

of the incident, Keen was at his regular job assignment at the Langdale Yard and was

moving cars to the Valdosta railroad track.

      While he was moving cars, Keen saw two of his supervisors observing him and

thought that they were harassing him and were “out there to fire [him.]” He decided

to stop the train to give his supervisors “a job briefing.” Following his discussion

with his supervisors, Keen received a call over the radio telling him that another train

was coming through and that he needed to return to his train. Keen then turned and

“walked through a driveway.” This was a different route than he had taken to reach

his supervisors, but it was a path that he walked “[j]ust about every day.” While he

was walking, Keen observed a “dried-up mud puddle.” Although Keen walked to the

                                           2
outside of the puddle, he slipped due to “a type of mud” and “drainage.” He claims

that the slip caused him to be injured. Keen testified that he had previously told “the

train masters,” as they were “fixing track and stuff,” that there were “walking

hazards” in the area where he fell.

      The Railroad filed a motion for summary judgment arguing that it was not

liable for violating FRSA because, inter alia, there was no evidence that the drainage

facility was improperly maintained or obstructed. It further argued that Keen’s claim

under FELA failed because he was unable to establish the elements of negligence.

The trial court granted the motion, and this appeal followed.

      1. Keen argues that the trial court erred in finding that he failed to state a

negligence claim under FELA. Under FELA, “railroad companies are liable for

injuries to their employees that result in whole or in part from company negligence.”

Norfolk Southern R. v. Schumpert, 270 Ga. App. 782 (608 SE2d 236) (2004); see 45

USC § 51. A railroad’s violation of a safety statute, is negligence per se under FELA.

See CSX Transp. v. McBride, 564 US 685, 703 (III) (B), n. 12 (131 SCt 2630, 180

LE2d 637) (2011).2 “Congress enacted the FRSA in 1970 to promote safety in every

      2
        “As a general matter, FELA cases adjudicated in state courts are subject to
state procedural rules, but the substantive law governing them is federal.” CSX
Transp. v. Howell, 296 Ga. App. 583, 586 (1) (675 SE2d 306) (2009).

                                          3
area of railroad operations and reduce railroad-related accidents and incidents.”

Norfolk Southern R. v. Zeagler, 293 Ga. 582, 597 (3) (748 SE2d 846) (2013) (citing

49 USC § 20101, punctuation omitted).

      While there is some overlap between the scope and purpose of FRSA
      and FELA - as both are directed to railroad safety - the statutory
      schemes approach each of their purposes from significantly different
      perspectives. The regulations promulgated under FRSA are the
      minimum safety requirements for railroad track that is part of the general
      railway system. FRSA’s purpose - to promote safety in every area of
      railroad operations and reduce railroad-related accidents and incidents -
      is entirely consistent with FELA’s goal of promoting the safety of
      railroad employees by facilitating their ability to recover for injuries
      caused by a railroad’s negligence.


Norfolk Southern R. v. Hartry, __ Ga. ___ (837 SE2d 303, 309 (2) (e)) (2019)

(citations and punctuation omitted).

      FELA is “an avowed departure from the rules of the common law. FELA was

a response to the special needs of railroad workers who are daily exposed to the risks

inherent in railroad work and are helpless to provide adequately for their own safety.”

Schumpert, supra at 784 (1) (citation and punctuation omitted).

      While the FELA does provide for a cause of action against the employer
      for negligent conduct which causes an injury to an employee, the Act


                                           4
      does not make the employer an insurer of the employee for any injury he
      receives. Nevertheless, the employer has a duty to provide the employee
      a reasonably safe workplace which includes safe conditions, tools,
      facilities, and supervision.


Bowles v. CSX Transp., 206 Ga. App. 6, 6 (1) (424 SE2d 313) (1992); (citation and

punctuation omitted). Furthermore, FELA “should be liberally construed in favor of

injured railroad employees in order to further its remedial goal and humanitarian

purposes.” Zeagler, supra at 596 (2) (e) (citation and punctuation omitted).

      “To bring a claim under FELA, a plaintiff must prove the traditional common

law elements of negligence: duty, breach, foreseeability, and causation.” Id. at 586

(2) (citations and punctuation omitted). “Whether the defendant has a duty to the

plaintiff is a question of law to be decided by the court. The other three elements -

foreseeability, breach, and causation - are questions of fact to be decided by a jury,

assuming that there is evidence in the record creating a genuine issue for trial.” Id.

(emphasis omitted). Under FELA

      the test of a jury case is simply whether the proofs justify with reason
      the conclusion that employer negligence played any part, even the
      slightest, in producing the injury or death for which damages are sought.
      It does not matter that, from the evidence, the jury may also with reason,
      on grounds of probability, attribute the result to other causes.

                                          5
Bowles, supra at 7 (1) (citation and punctuation omitted; emphasis in original). “In

other words, trial by jury is part of the remedy in FELA cases.” Kelson v. Central of

Georgia R., 234 Ga. App. 200, 203 (1) (a) (505 SE2d 803) (1998) (citations and

punctuation omitted).

      The Railroad had a duty to provide Keen with a “reasonably safe workspace.”

See Bowles, supra at (1). Keen alleges that the Railroad violated 49 CFR § 213.33,

which provides that “[e]ach drainage or other water carrying facility under or

immediately adjacent to the roadbed shall be maintained and kept free of obstruction,

to accommodate expected water flow for the area concerned.”

      To support his claim that the Railroad breached a duty by failing to keep the

drainage free from obstruction, Keen points to an affidavit from Joe Lydick, a railroad

safety consultant. Lydick opined that the Railroad was not in compliance with 49

CFR § 213.33 as the ditch and the pipe near where Keen fell “were full of vegetation

and silt and by the appearance of the mud around the switch and roadway was not

draining the water properly away from the roadbed.”

      In its appellate brief, the Railroad claims that Lydick’s affidavit “must be

disregarded as rank speculation” because his opinion relied upon the site inspection

he conducted two and a half years after the incident. However, the Railroad did not

                                          6
challenge Lydick’s qualifications or the admissibility of his testimony at the trial

court level. See Zeagler, supra at 585 (1) (c); Toyo Tire North America Mfg. v. Davis,

299 Ga. 155, 157 (1) (787 SE2d 171) (2016). Furthermore, the trial court did not

make a ruling or even opine about the admissibility or credibility of Lydick’s affidavit

in its order granting summary judgment. Compare Udoinyion v. Michelin North

America, 313 Ga. App. 248, 251 (1) (721 SE2d 190) (2011) (trial court’s ruling that

plaintiff’s expert affidavits in response to the defendant’s motion for summary

judgment were “totally inadequate” was not in error given their “paucity”). Although

the Railroad agues that the methodology employed to arrive at the conclusions in

Lydick’s affidavit raises questions, “[a]n appellate court should not conduct the

analysis of [an expert’s] methodology in the first instance.” Toyo Tire North America

Mfg., supra at 160 (2).

      “Consequently, we will consider only whether the record as we now find it -

including the opinions of the expert - is enough to get [Keen] past summary

judgment.” Toyo Tire North America Mfg., supra at 161 (2) (citation and punctuation

omitted). In addition to Lydick’s affidavit, Keen cited “drainage” and mud as being

a cause of his slip. Lydick’s affidavit and Keen’s testimony suffice to create a

question of fact as to whether the Railroad committed negligence per se by violating

                                           7
49 CFR § 213.33. See generally Bowles, supra at 7 (1); Toyo Tire North America

Mfg., supra at 162 (2); Zeagler, supra at 587 (2) (“FELA has a relaxed negligence per

se standard, which makes it easier for a FELA plaintiff to survive summary judgment

than for a plaintiff bringing a common-law negligence claim.”); Correll v.

Consolidated R., 266 FSupp2d 711, 714 (N. D. Ohio 2003) (“[I]t is well-settled that

the FELA requires a finding of negligence per se when there has been a violation of

a safety statute specifically aimed at the railroad industry”) (citation and punctuation

omitted). Keen has put forth enough evidence to survive summary judgment on the

duty and breach elements of his claim. See Goldstein, Garber & Salama v. J. B., 300

Ga. 840, 844 (2) n. 5 (797 SE2d 87) (2017) (Negligence per se supplies the duty and

breach of duty elements of a tort).

      As to the remaining elements of Keen’s FELA claim, foreseeability and

causation, Keen has put forth evidence that he told his supervisors of the walking

hazards in the area, and that this failure caused him to slip and his subsequent

injuries. Questions of fact, therefore, remain for the jury. See Zeagler, supra at 586

(2). The trial court erred in granting the Railroad’s motion for summary judgment on

Keen’s FELA claim. See generally Bowles, supra at 7 (1).



                                           8
      2. As discussed in Division I, FRSA imposes a duty on the Railroad that may

give rise to a FELA action. See Tubbs v. BNSF R. Co., 562 SW3d 323, 340 (1) (B)

(Mo. App. 2018). However, “FRSA does not create a private right of action;

enforcement powers under the statute are vested solely with the Secretary of

Transportation and, under certain conditions, the States or the Attorney General.”

Hartry, supra at 307 (2) (b)) (2019) (footnote omitted). To the extent that Keen

attempts to argue a separate cause of action under FRSA, such a claim fails. See

Hartry, supra. As such, the trial court’s grant of summary judgment on Keen’s claim

for damages under FRSA is affirmed.

      Judgment reversed in part, affirmed in part. Barnes, P. J., and Brown, J.,

concur.




                                        9
