                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      February 5, 2020

                                                                        Christopher M. Wolpert
                             FOR THE TENTH CIRCUIT                          Clerk of Court
                         _________________________________

 GEORGE M. EZELL,

       Plaintiff - Appellant,

 v.                                                         No. 19-6018

 BNSF RAILWAY COMPANY,

       Defendant - Appellee.
                      _________________________________

                     Appeal from the United States District Court
                        for the Western District of Oklahoma
                             (D.C. No. 5:15-CV-00968-R)
                       _________________________________

Richard L. Carlson, Hunegs, LeNeave & Kvas, P.A. (William Kvas, Hunegs, LeNeave &
Kvas, P.A., and Clint Russell, Stratton Taylor, and Mark H. Ramsey, Taylor Foster Law
Firm, with him on the briefs), Wayzata, Minnesota, for Appellant.

George R. Mullican (Christopher D. Wolek and Michael Womack with him on the brief),
of Mullican & Hart, P.C., Tulsa, Oklahoma, for Appellee.
                       _________________________________

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
                  _________________________________

PHILLIPS, Circuit Judge.
                     _________________________________

      Throughout American history, railroad workers have risked their lives and

limbs to satisfy our Nation’s need to have freight shipped across the United States.

To recompense those workers for the injuries they suffer from their occupation,
Congress enacted the Federal Employers Liability Act (FELA), 45 U.S.C. §§ 51–60.

FELA permits injured railroad workers to sue their railroad employers for

negligence. To succeed, employees must present some evidence showing that their

workplaces were not reasonably safe. For purposes of summary judgment, we credit

George Ezell’s account that to complete his assigned task, he had to climb railcar

ladders to see which railcars were more than half full of ballast. Even with that, the

evidence establishes that to do their jobs railroad conductors need to climb the

ladders and that this is a reasonably safe activity. For that reason, we agree with the

district court’s dismissal of this case. Ezell’s proffering what he believes are safer

alternatives does not show negligence. We affirm.

                                   BACKGROUND

I.    Factual Background

      Ezell was a conductor for BNSF Railway Company. On May 2, 2014, the

trainmaster, Michael Castleberry, directed Ezell to detach twenty ballast-loaded

railcars from a train about to enter the Enid, Oklahoma train yard. Earlier that day, a

maintenance-of-way crew had used ballast from at least some of the railcars while

working to maintain the track. Ezell testified that Castleberry did not tell him what

counted as a loaded railcar. But Ezell testified that Shawn Jernigan, the yardmaster,

had previously told him to treat ballast railcars as loaded if they were more than half

full.1 Jernigan contested ever doing so.


      1
        Ezell also testified that he had been previously told that a railcar is fully
loaded if an employee, standing on the ground, can see the ballast’s peak above the
                                            2
       As Ezell took charge of the entering train, two crews previously with the train

left it. The first was the maintenance-of-way crew, and the second was a crew that

Ezell’s crew was relieving. Despite internal rules that Ezell asserts required them to

“keep a good list”—a list that he says would have documented “empties and loads”—

neither crew provided him with such a list. Appellant’s Opening Br. 8.2

       Before Ezell’s crew moved the train into the Enid railyard, Devon Miller, its

brakeman, went ahead to configure the yard switches. Earlier, Miller had obtained a

list of the train’s railcars from Jernigan. As the train slowly entered the railyard,

Miller noted for each railcar whether its wheel-assembly springs were compressed.

He marked the railcars with compressed springs as loaded. Miller testified that he

gave the list to Ezell. But Ezell could not remember getting the list. Whether he did

or not, Ezell testified that even with Miller’s list he would still have needed to climb



railcar. This prompted BNSF’s attorney to ask Ezell who had told him “that for a
rock car to be considered a load, you had to be able to see the peak of the mound
from the ground?” Appellant’s App. vol. 2 at 185 (emphasis added). But this
mischaracterized Ezell’s testimony that the mound had to be visible for a car to be
considered fully loaded, not for it to be considered loaded. Even though Ezell
responded that Jernigan had told him about such a rule, we understand Ezell’s
testimony as being that he was told a car was fully loaded if a mound was visible and
loaded if it was more than half full. Genberg v. Porter, 882 F.3d 1249, 1253 (10th
Cir. 2018) (“On an appeal from a grant of summary judgment, we draw all reasonable
factual inferences in favor of the non-moving party.” (citation omitted)).
       2
         We do not read these rules to provide the clear direction that Ezell claims
they do: “Follow these requirements when unloading ballast cars: 14. Make sure
ballast cars are empty with the doors properly closed and locked before releasing the
cars. 15. Keep a good list of car numbers and release them promptly.” Appellant’s
App. vol. 2 at 146; see also Appellant’s App. vol. 1 at 64 (“Comply with all company
safety rules, engineering instructions, training practices and policies.”).
                                            3
the railcar ladders to see which were more than half full of ballast—a more precise

determination than compressed springs would give.3

       During his three years with BNSF, Ezell had been involved with several

ballast trains. He testified that he had often checked the content of the railcars by

climbing the railcar ladders and looking inside. On this day, he used that same

method for each inspection—he would climb the railcar ladder, reach with his left

hand to grab “the top lip” (or flange), and then pull himself up to look inside the

railcar.

       Ezell safely performed this method for five or six railcars, but while inspecting

the next railcar, his left hand slipped from the flange after he had let go of the ladder

rung with his right hand. He was unable to resecure a grip with either hand and fell

several feet to the ground, fracturing his right leg, right ankle, and left foot.

II.    Procedural Background

       Under FELA and the Federal Safety Appliance Act (FSAA), 49 U.S.C.

§§ 20301–20306, Ezell sued BNSF for failing to provide him with a reasonably safe

place to work. BNSF moved for summary judgment, arguing that its railcar complied



       3
         BNSF makes much of Ezell’s choosing to climb the railcar ladders despite
having safer alternatives to determine whether a railcar was loaded. It argues that he
could have (1) used a list, (2) checked the compression of the springs, (3) banged on
the side of the railcar, or (4) thrown a rock into the railcar and listened for a hollow
sound. But on summary judgment, we credit Ezell’s testimony that these four
alternative methods would not have enabled him to complete his assigned task of
accurately identifying twenty loaded railcars to detach—that is, twenty railcars more
than half full of ballast. Accordingly, the other four methods play no role in our
analysis.
                                             4
with the governing safety regulations and that Ezell had offered no evidence of

BNSF’s negligence. Ezell partially opposed that motion, claiming that BNSF had

breached its duty to him in three ways: (1) by not having the maintenance-of-way

crew or the train crew provide him with a list of the empty railcars, (2) by failing to

provide him a tool to eliminate any need to climb the railcar ladders (a stick of some

sort with a mirror), and (3) by failing to implement a policy defining what constituted

a loaded railcar. Ezell conceded that his FSAA claim should be dismissed.

       The district court granted summary judgment for BNSF on Ezell’s FELA

claim. On two bases, it ruled that “the undisputed evidence show[ed] that BNSF

fulfilled its duty to provide Ezell with a safe place to work and with adequate and

reasonably safe tools and equipment.” Appellant’s App. vol. 2 at 286. First, as Ezell

admits, the railcar complied with federal regulations and was in good condition.

Second, after considering testimony from Ezell’s expert, Colon R. Fulk, the district

court concluded that climbing a railcar is a safe activity and that it “is a regularly

performed function of a conductor.” Id. at 287. Because the evidence showed that

BNSF provided a safe workplace even with conductors climbing railcar ladders, the

district court concluded that Ezell’s argument that BNSF could have provided even

safer alternatives to climbing would not suffice to show any BNSF negligence. This

appeal followed. We have appellate jurisdiction under 28 U.S.C. § 1291.




                                            5
                                    DISCUSSION

I.    Standard of Review

      We review de novo the district court’s grant of summary judgment against

Ezell’s FELA claim. May v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019) (quoting

Tuckel v. Grover, 660 F.3d 1249, 1251 (10th Cir. 2011)). We affirm “if the movant

show[ed] that there [was] no genuine dispute as to any material fact and the movant

[was] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In making that

decision, we view the evidence “in the light most favorable to the non-moving party.”

Schulenberg v. BNSF Ry. Co., 911 F.3d 1276, 1285 (10th Cir. 2018) (internal

quotation marks omitted) (quoting Libertarian Party of N.M. v. Herrera, 506 F.3d

1303, 1309 (10th Cir. 2007)). After “the moving party has identified a lack of a

genuine issue of material fact, the nonmoving party has the burden to cite to ‘specific

facts showing that there is a genuine issue for trial.’” May, 929 F.3d at 1234 (quoting

Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th Cir.

2013)). The nonmoving party must be specific to satisfy its burden, either by “citing

to particular parts of materials in the record” or by showing that the moving party has

relied on insufficient or inadmissible evidence. Fed. R. Civ. P. 56(c)(1)(A)–(B).

II.   Deficient Appendix and New Theories

      BNSF argues that we should not reach the substantive issues because Ezell has

made procedural errors.

      First, BNSF points out that Ezell failed to include in his appendix the

summary-judgment briefing in the district court. BNSF argues that comparing his

                                           6
district court briefing with his appellate briefing shows that Ezell is making new

arguments on appeal. The issue is easily resolved. BNSF may cure the problem and

“file a supplemental appendix of [its] own.” Milligan-Hitt v. Bd. of Trs., 523 F.3d

1219, 1231 (10th Cir. 2008) (citing 10th Cir. R. 30.2(A)(1)). BNSF has done so, and

we now have what we need to consider BNSF’s argument.

       Next, BNSF claims that in the district court Ezell “failed to raise the bulk of

theories that he [now] offers.” Appellee’s Resp. Br. 17. BNSF lists the following as

new “theories”:

       1.     FELA plaintiffs only have the burden of showing slight negligence by
              the defendant.
       2.     BNSF’s failure to follow its own rules creates a jury question.
       3.     By enacting its rules, BNSF recognized a need for them.
       4.     BNSF’s work methods were inadequate since they were subjective.
       5.     BNSF had an obligation to provide better tools—that is, tools that
              would allow employees to determine if a railcar was loaded without
              requiring them to climb railcars.
       6.     Ezell’s testimony creates a genuine issue of material fact.

But Ezell raised all six of these theories before the district court:

       1.     Ezell argued that BNSF could be liable if he showed that, “no matter
              how small” it was, BNSF’s negligence played a role in causing his
              injury. Appellee’s Suppl. App. vol. 2 at 165 (citation omitted).
       2.     Ezell claimed that the jury could find that BNSF breached its duty
              because it failed to provide him “with a list showing cars which were
              loaded versus empty.” Id. at 166.
       3.     Ezell stated that providing a list was the “best practice[]” and that BNSF
              was negligent for not following its “best practice.” Id. at 164, 166.
       4.     Ezell claimed that BNSF breached its duty because it did not adopt
              specific guidelines or procedures to determine whether railcars were
              empty, instead simply requiring employees to bang on the sides to
              decide if they thought the railcars sounded hollow.
       5.     Ezell argued that BNSF was negligent for not using a modified brake
              stick, a tool that would “allow[] workers to inspect the inside of cars for
              loads without having to climb on the car.” Id. at 166–67.

                                             7
      6.     Ezell stated that there were “[a]dditional facts precluding judgment as a
             matter of law.” Id. at 160. To support that contention, he cited his
             deposition to dispute numerous facts asserted by BNSF—such as
             whether he was instructed that a railcar was loaded if it was more than
             half full and that “BNSF had no written guidelines with respect to
             whether a ballast car was loaded or empty.” Id. at 161.

      Though Ezell might be expanding on these theories now, he did present them

in some form to the district court—he is not relying on different theories of liability.

For instance, this situation is unlike one in which a plaintiff raises a negligent-

failure-to-warn claim in the district court but then argues a negligent-design claim on

appeal. See, e.g., Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 722 (10th Cir. 1993)

(citing Grasmick v. Otis Elevator Co., 817 F.2d 88, 89–90 (10th Cir. 1987)). Instead,

all of Ezell’s claims are FELA claims rooted in one theory: BNSF was negligent

because it did not take precautions that would enable Ezell to avoid climbing the

railcar ladders to complete his assigned job task.

      Furthermore, BNSF argues that all of these theories can and should be

“distilled” into one inquiry: “whether the method prescribed by BNSF . . . was

reasonably safe, not whether BNSF could have used a safer[,] alternative method for

performing the task.” Appellee’s Resp. Br. 25–26. The district court agreed and

found that BNSF’s method was reasonably safe, and BNSF argues that we should

now affirm on the same basis. But because BNSF casts Ezell’s various arguments—

old or new—as all part of one inquiry, the same inquiry as that made by the district

court, we fail to see how BNSF can, at the same time, argue that Ezell’s “new

theories” present new issues.


                                            8
III.   Elements of a FELA Claim

       FELA is a remedial law designed to “shift[] part of the ‘human overhead’ of

doing business from employees to their employers.” Consol. Rail Corp. v. Gottshall,

512 U.S. 532, 542 (1994) (quoting Tiller v. Atl. Coast Line R.R., 318 U.S. 54, 58

(1943)). In part, FELA states:

       Every common carrier by railroad while engaging in [interstate]
       commerce . . . shall be liable in damages to any person suffering injury
       while he is employed by such carrier in such commerce . . . 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, or by reason of any
       defect or insufficiency, due to its negligence, in its cars, engines,
       appliances, machinery, track, roadbed, works, boats, wharves, or other
       equipment.

45 U.S.C. § 51. We have derived from this four elements to a FELA claim: (1) the

employee was injured within the scope of his employment, (2) the employment was

in furtherance of the employer’s interstate transportation business, (3) the employer

was negligent, and (4) the employer’s negligence played some part in causing the

injury for which the employee seeks compensation under FELA. Van Gorder v.

Grand Trunk W. R.R., 509 F.3d 265, 269 (6th Cir. 2007); see also Volner v. Union

Pac. R.R., 509 F. App’x 706, 708 (10th Cir. 2013) (unpublished) (adopting Van

Gorder’s elements).

       Here, Ezell indisputably satisfies the first two elements, but BNSF argues that

he fails on elements three and four.

       All negligence questions start the same: did the defendant owe and breach a

duty to the plaintiff? Without a duty to the plaintiff, courts and juries cannot say that


                                            9
a defendant did anything wrongful vis-à-vis the plaintiff by acting or failing to act.

See CSX Transp., Inc. v. McBride, 564 U.S. 685, 703 (2011) (citing Gallick v. Balt. &

Ohio R.R., 372 U.S. 108, 119 n.7 (1963)). So, before we can consider causation, we

must first determine whether Ezell has raised a genuine dispute about BNSF’s owing

and breaching a duty to him.

      “A railroad has a duty to use reasonable care in furnishing its employees with

a safe place to work.” Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557,

558 (1987). The degree of that duty depends on the magnitude of risk—the greater

the risk the greater the duty. Bailey v. Cent. Vt. Ry., 319 U.S. 350, 353 (1943) (“[The

employer’s duty] is a duty which becomes more imperative as the risk increases.”

(internal quotation marks and citation omitted)). In considering whether a railroad

has breached its duty, the Supreme Court has instructed us to ask whether the railroad

“observe[d] that degree of care which people of ordinary prudence and sagacity

would use under the same or similar circumstances[.]” CSX Transp., 564 U.S. at 703

(internal quotation marks omitted) (quoting Gallick, 372 U.S. at 118).

      Appraising negligence under FELA “turns on principles of common law . . . ,

subject to such qualifications [that] Congress” introduces. Gottshall, 512 U.S. at 543

(internal quotation marks omitted) (quoting Urie v. Thompson, 337 U.S. 163, 182

(1949)). And “[a]t common law the duty of the employer to use reasonable care in

furnishing his employees with a safe place to work was plain.” Bailey, 319 U.S. at

352 (citations omitted); see also Dan B. Dobbs et al., The Law of Torts § 420 (2d

ed.) (June 2019 update) (“[T]he employer owes a duty of reasonable care to furnish a

                                           10
safe place in which to work.” (citations omitted)). The duty is “measured by what is

reasonably foreseeable under like circumstances.” CSX Transp., 564 U.S. at 703

(internal quotation marks omitted) (quoting Gallick, 372 U.S. at 118).

      Thus, the Supreme Court has ruled that the railroad’s duty to provide a safe

workplace is a duty of reasonable care.4 E.g., id.; Buell, 480 U.S. at 558; Gallick, 372

U.S. at 118. Having outlined BNSF’s duty, we will now address whether a genuine

dispute exists about BNSF breaching that duty.5


      4
         In a few older cases, some circuits have concluded that a railroad’s duty is a
heightened one and can be breached just by “slight negligence.” See, e.g., Ulfik v.
Metro-N. Commuter R.R., 77 F.3d 54, 58 n.1 (2d Cir. 1996) (citing Mullahon v.
Union Pac. R.R., 64 F.3d 1358, 1364 (9th Cir. 1995); Syverson v. Consol. Rail Corp.,
19 F.3d 824, 825 (2d Cir. 1994); Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d
Cir. 1991)); see also Ackley v. Chi. & N. W. Transp. Co., 820 F.2d 263, 267 n.6 (8th
Cir. 1987) (analogizing a railroad’s “special dut[y]” under FELA to the relationship
between a school and its pupils). We too have used the slight-negligence term, albeit
without specifying whether we were referring to fault or causation. See Mo.-Kan.-
Tex. Ry. Co. v. Hearson, 422 F.2d 1037, 1040 (10th Cir. 1970). At other times, we
have spoken of the need for railroads to “use ordinary care” and “do what a
reasonably prudent person would do to make the work environment safe.” Volner,
509 F. App’x at 709 (citing Van Gorder, 509 F.3d at 269). Whatever our earlier
approach, in view of CSX Transportation, we conclude that the Supreme Court has
discredited the notion that a railroad’s duty to its employees is a heightened one that
can be breached by slight negligence. 564 U.S. at 703; see also Gautreaux v.
Scurlock Marine, Inc., 107 F.3d 331, 335–36 (5th Cir. 1997) (en banc) (noting that
the slight-negligence rule was derived from misreading Supreme Court precedent).
But once an employee shows that the railroad has breached its duty, then the
employee’s burden of establishing causation is relaxed. Rogers v. Mo. Pac. R.R., 352
U.S. 500, 506 (1957); see also CSX Transp., 564 U.S. at 693–95, 697 (noting that
Rogers’s relaxed-standard test refers to causation); Gottshall, 512 U.S. at 542–43
(same).
      5
         Ezell asserts that even if BNSF had a duty of ordinary prudence BNSF’s
internal rules “ratcheted up” its duty. Oral Argument at 12:13–12:24. Assuming that
BNSF’s internal rules apply here and that Ezell did need to receive a “good list”
indicating which cars were more than half full, we disagree that those rules
                                          11
IV.    Ezell Has Failed to Show That Climbing a Railcar Ladder Is Not
       Reasonably Safe.

       Ezell claims that he needed to climb the railcar ladders to complete his

assigned task—to determine whether each railcar was loaded, that is, more than half

full of ballast. At the summary-judgment stage, we credit Ezell’s testimony that

Jernigan had defined a loaded railcar this way.

       That takes us to the next step—did BNSF provide Ezell an unsafe workplace

by requiring him to climb the railcar ladder to make a more precise determination?

No, according to Ezell’s expert witness, Colon Fulk. Fulk testified that it would not

be “unreasonable for a railroad to expect a conductor to climb on a railcar” and

conceded that conductors “do it all the time.” Appellant’s App. vol. 2 at 266. He also

agreed that “it is not an unreasonable risk for BNSF or any railroad to expect its

railroad . . . employees to climb a railcar” as “part of the[ir] job requirements[.]” Id.

at 268–69. He opined that there would be “[n]othing unreasonable about a

yardmaster” ordering a conductor “to visually inspect every car.” Id. at 267. And




augmented BNSF’s duty. While a company’s internal rules “are admissible to show
negligence,” those rules “do not alter the applicable standard of care.” Robinson v.
Mo. Pac. R.R., 16 F.3d 1083, 1091 (10th Cir. 1994); Fulton v. St. Louis–S.F. Ry., 675
F.2d 1130, 1133 (10th Cir. 1982); see also Therrien v. Target Corp., 617 F.3d 1242,
1256 (10th Cir. 2010) (approving a jury instruction that allowed admission of
Target’s internal policies with the limitation that “the finding of a violation of policy
or procedure should not be equated with a finding of negligence”). Here, Ezell offers
BNSF’s internal rules to heighten—or ratchet up—BNSF’s duty, but these cases
preclude such an enhancement of the standard of care.

                                            12
when asked if he “st[oo]d by [his] testimony that asking a conductor to climb a

railcar is not an unsafe task,” he said, “[t]hat’s true.” Id. at 270.6

       To operate its railroad, BNSF must sometimes have its employees climb

railcar ladders. In addition to checking how full railcars are, expert Fulk identified

another reason that BNSF employees might need to climb the ladders—BNSF policy

requires maintenance-of-way crew members to “climb ballast cars to ensure that the

loads are balanced[.]” Id. at 272–73. He also testified that conductors “often have to

[climb] to set hand brakes[.]” Id. at 266.

       BNSF met its initial burden of showing a safe workplace, even when requiring

employees to climb railcar ladders. In response, Ezell impermissibly expands the

safe-workplace standard as requiring the safest alternative available. For instance,

Ezell argues that he never would have had to climb the ladder if BNSF had supplied

him some sort of mirror on a stick. And he argues that he would not have had to

climb the railcar ladder had BNSF enforced its internal rules requiring the

maintenance-of-way and train crews supply him with a list of loads and empties. But

to show railroad negligence, FELA requires plaintiffs to show an unsafe workplace—

not a failure to provide the safest possible workplace. E.g., Darrough v. CSX Transp.,


       6
        Importantly, BNSF has a safety rule imposing requirements on its employees
climbing railcar ladders. Employees must “[m]aintain three-point contact”—that is,
maintain contact with “both feet and one hand or both hands and one foot”—while
“ascending or descending ladders or platforms.” Appellee’s Suppl. App. vol. 1 at 83.
Although the rule itself does not state what employees must maintain three-point
contact with, Ezell’s expert testified that one purpose of the rule is to require “contact
with safety appliance[s]” that will hold an employee’s weight. Appellant’s App. vol.
2 at 254. The flange above the ladder does not qualify as a safety appliance.
                                             13
Inc., 321 F.3d 674, 676 (7th Cir. 2003) (“CSXT did not have to create the safest

possible work environment . . . only a reasonably safe one.”); Walker v. Ne. Reg’l

Commuter R.R., 225 F.3d 895, 899 (7th Cir. 2000) (“Safer methods of lifting may be

available, but Metra need only use a reasonably safe method for lifting the blade.”

(citation omitted)); Stillman v. Norfolk & W. Ry. Co., 811 F.2d 834, 838 (4th Cir.

1987) (explaining that the district court did not even need to admit evidence that the

railroad had access to a safer, alternative method when the primary method was itself

safe); Soto v. S. Pac. Transp. Co., 644 F.2d 1147, 1148 (5th Cir. 1981) (per curiam)

(“That there were other, arguably more advanced, methods in use by the defendant

for cleaning these pits is of no significance where the method in use by Mr. Soto was

not an inherently unsafe one.”).

      Because BNSF did provide Ezell a safe workplace, even according to his own

expert witness, we agree with the district court that it is entitled to summary

judgment. Accordingly, we affirm.




                                           14
