14-3074-cv
Coale v. Metro-North R.R.


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 13th day of July, two thousand fifteen.

PRESENT: RALPH K. WINTER,
                 PIERRE N. LEVAL,
                 REENA RAGGI,
                                 Circuit Judges.
----------------------------------------------------------------------
WILLIAM COALE,
                                 Plaintiff-Appellant,

                            v.                                           No. 14-3074-cv

METRO-NORTH                      COMMUTER                RAILROAD
COMPANY,
                                  Defendant-Appellee,

NEW HAVEN PARKING AUTHORITY,
                                 Third-Party-Defendant.*
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          GEORGE J. CAHILL, JR. (Scott E. Perry, on the
                                                  brief), Cahill & Perry, P.C., New Haven,
                                                  Connecticut.




*
    The Clerk of Court is directed to amend the official caption as shown above.

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APPEARING FOR APPELLEE:                  BECK S. FINEMAN, Ryan Ryan Deluca LLP,
                                         Stamford, Connecticut.

      Appeal from a judgment of the United States District Court for the District of

Connecticut (Charles S. Haight, Jr., Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on August 5, 2014, is VACATED and the case

is REMANDED for further proceedings consistent with this order.

      Plaintiff William Coale, a former assistant conductor for Metro-North Commuter

Railroad Co. (“Metro-North”), appeals from an award of summary judgment in favor of

defendant Metro-North on Coale’s Federal Employers’ Liability Act (“FELA”) claim, see

45 U.S.C. § 51 et seq., for negligent failure to provide a safe work environment, causing

him to suffer a serious back injury. We review an award of summary judgment de novo,

and we will affirm only if the record, viewed in the light most favorable to the nonmoving

party, reveals no genuine issue of material fact. See Fed. R. Civ. P. 56(a); Zann Kwan v.

Andalex Grp. LLC, 737 F.3d 834, 842–43 (2d Cir. 2013). We assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision.

1.    FELA Claim

      FELA places a duty on railroad employers to provide their employees with a safe

workplace, see 45 U.S.C. § 51; Tufariello v. Long Island R.R., 458 F.3d 80, 87 (2d Cir.

2006), which “includes the duty to maintain and inspect work areas,” Sinclair v. Long

Island R.R., 985 F.2d 74, 76 (2d Cir. 1993). A railroad breaches its FELA duty “if it knew

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or should have known of a potential hazard in the workplace, and yet failed to exercise

reasonable care to inform and protect its employees.” Williams v. Long Island R.R., 196

F.3d 402, 406 (2d Cir. 1999) (internal quotation marks omitted). Courts apply a more

relaxed standard of both negligence and causation to FELA negligence claims than to those

arising under common law. See Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506 (1957);

Williams v. Long Island R.R., 196 F.3d at 406. This does not make FELA a strict liability

statute, see Williams v. Long Island R.R., 196 F.3d at 406; claimants must offer some

evidence to support a finding of negligence, O’Hara v. Long Island R.R., 665 F.2d 8, 9 (2d

Cir. 1981). But it does mean that juries have more latitude to infer negligence than at

common law, such that the question can rarely be taken from them and decided by the court

as a matter of law. See Williams v. Long Island R.R., 196 F.3d at 407; Ulfik v.

Metro-North Commuter R.R., 77 F.3d 54, 58 (2d Cir. 1996).

      Coale argues that the district court erred in concluding, as a matter of law, that

Metro-North could not be held liable under FELA for his workplace injuries because it

lacked actual or constructive notice of the precipitating hazardous condition, namely, an

oily, shiny substance on the floor of Metro-North’s New Haven Employee Register Room.

As the district court correctly recognized, under our precedent, “the essential element of

reasonable foreseeability in FELA actions . . . requires proof of actual or constructive

notice to the employer of the defective condition that caused the injury.” Sinclair v. Long

Island R.R., 985 F.2d at 77 (internal citation omitted). Here, Coale did not demonstrate

notice through specific evidence that a Metro-North employee or agent created the hazard.


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Nor did he adduce evidence that the hazard was so obvious and persistent in nature that

Metro-North can be charged with constructive notice under its duty to inspect. See, e.g.,

id. (holding that jury could reasonably infer from proffered photographs that hazardous

condition existed long enough to impart constructive or actual notice to railroad).

       Nevertheless, we conclude that summary judgment should not have been awarded

to Metro-North because we cannot conclude, as a matter of law, that his negligence claim

necessarily fails on a theory of res ipsa loquitur. To pursue that theory, a plaintiff must

show that (1) the injurious event “was of a kind which ordinarily does not occur in the

absence of someone’s negligence,” (2) “it was caused by an agency or instrumentality

within the exclusive control of the defendant,” and (3) “it was not due to any voluntary

action or contribution on the part of the plaintiff.” Potthast v. Metro-North R.R., 400 F.3d

143, 149 (2d Cir. 2005) (internal quotation marks omitted). The district court concluded

that Coale could not satisfy either the first or second elements. As to the first, it observed

that “[s]lip and fall cases often occur in the absence of negligence.” Coale v. Metro-North

R.R., 34 F. Supp. 3d 206, 219 (D. Conn. 2014). While that may be true in the abstract, it

cannot be said, as a matter of law, about the slip and fall here at issue. Coale slipped

because an oily substance had pooled on the Register Room floor. There is no apparent

explanation for the presence of that substance except someone’s negligence. Indeed,

Metro-North has proffered no non-negligent explanation.

       As to the second element, the district court noted “the possibility that someone other

than Metro-North or [its contract agent] NHPA could have caused the spill, . . . such that


                                              4
this Court cannot conclude that Metro-North or NHPA had exclusive control of the

substance upon which Coale slipped.” Id. But the “possibility” seems remote given that

the Register Room was a restricted area, accessible only through a keypad-secured door.

While Metro-North offered evidence that a technician entered the room approximately

once a year to service a vending machine, and that Amtrak employees occasionally used a

secured bathroom, it made no showing that any such persons, for whose actions it would

not have been responsible, had been in the Register Room on the day of Coale’s injury.

By contrast, Coale offered evidence that the Register Room had been used as usual by

Metro-North employees throughout the day of his injury. On this record, the res ipsa

loquitur question should not have been taken from the jury. See Potthast v. Metro-North

R.R., 400 F.3d at 150–51 & n.9 (noting that “‘requirement’ of exclusive control has not

been read so strictly in our cases, by the Restatement, and by many state courts,” as to

foreclose res ipsa loquitur liability whenever third parties had access to injuring

instrumentality, but rather that case properly proceeds to jury “so long as adequate

evidence was presented [to] allow[] a jury to exclude the actions of such third parties as

significant causes of the injury”); id. at 152 (cautioning that “in making determinations

regarding the plaintiff’s eligibility for a res ipsa loquitur charge, the court should be

especially careful not to take to itself the role and responsibility of the jury,” and further

observing that “[i]n persuading the court that a plaintiff merits a res ipsa loquitur

instruction, the plaintiff cannot be required to meet as high an evidentiary hurdle as would

ultimately be needed to convince a jury”); see also Dermatossian v. N.Y.C. Transit Auth.,


                                              5
67 N.Y.2d 219, 227, 501 N.Y.S.2d 784, 789 (1986) (“The exclusive control requirement,

as generally understood, is that the evidence must afford a rational basis for concluding that

the cause of the accident was probably such that the defendant would be responsible for

any negligence connected with it. The purpose is simply to eliminate within reason all

explanations for the injury other than the defendant’s negligence. The requirement does

not mean that the possibility of other causes must be altogether eliminated, but only that

their likelihood must be so reduced that the greater probability lies at defendant’s door.”

(emphasis added) (internal quotation marks and citations omitted)).

       We therefore vacate the award of summary judgment in favor of Metro-North, and

remand the case for further proceedings consistent with this order, including trial.

2.     Denial of Spoliation Sanction

       Coale argues that the district court abused its discretion in failing to sanction

Metro-North for spoliation of evidence, specifically, the oily substance on which he

slipped. See West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)

(reviewing district court’s decision on spoliation for abuse of discretion). A party seeking

an adverse inference instruction based on the destruction of evidence must establish

“(1) that the party having control over the evidence had an obligation to preserve it at the

time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and

(3) that the destroyed evidence was relevant to the party’s claim or defense such that a

reasonable trier of fact could find that it would support that claim or defense.” Residential

Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal quotation


                                              6
marks omitted)).    In denying Coale’s motion, the district court concluded—moving

directly to the third factor—that the destroyed evidence was not relevant to Coale’s claim.

See Coale v. Metro-North R.R., 34 F. Supp. 3d at 220. We are not persuaded. Insofar as

identifying the substance may have shed light on the party who spilled it, the substance

provided evidence relevant to an element of Coale’s negligence claim—i.e., whether

Metro-North had “actual or constructive notice . . . of the defective condition that caused

the injury.” Sinclair v. Long Island R.R., 985 F.2d at 77 (internal citation omitted); see

Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998) (observing that party’s

destruction of evidence “relevant to proof of an issue at trial can support an inference that

the evidence would have been unfavorable to the party responsible for its destruction”).

Nevertheless, because the district court did not evaluate the remaining factors in reaching

its decision, we vacate the spoliation decision and remand for the district court to

determine, in its discretion, whether a spoliation sanction is warranted in this case.

3.     Conclusion

       For the reasons stated above, we VACATE the judgment of the district court and

REMAND the case for further proceedings consistent with this order.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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