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1 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. JOHN MACARTNEY, v. Plaintiff-Appellant, NEW JERSEY TRANSIT RAIL OPERATIONS, INC. (NJT), Defendant-Respondent. Submitted November 10, 2015 Decided December 11, 2015 PER CURIAM Before Judges Yannotti, Guadagno, and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L Keller & Goggin, P.C., attorneys for appellant (Voci R. Bennett, on the brief). Hohn & Scheuerle, LLC, attorneys for respondent (John A. Thiry, on the brief). Plaintiff John Macartney appeals from the June 6, 2014 order of the Law Division granting summary judgment in favor of his employer, defendant New Jersey Transit Rail Operations, Inc.

2 (NJT). We have carefully reviewed the facts in the record as well as the applicable law, and we affirm. We glean the following facts from the record. At approximately 7:00 p.m. on September 17, 2009, plaintiff was operating eastbound train X122 as a locomotive engineer for NJT when the train pulled into Waldwick Station. Plaintiff left the train and walked down the platform to the cab car, from which he planned to operate the train in the other direction. Plaintiff placed both hands on "grab irons" on each side of the car and attempted to pull himself into the car. His left foot slipped and he fell. Plaintiff described his fall as "similar to either slipping on ice or possibly like an oil." The slip caused pressure to shift to his right leg, resulting in a torn meniscus and torn quadricep. Both injuries required surgery. Plaintiff also suffered a subsequent infection and a blood clot, necessitating a second surgery. Plaintiff testified that the train he was operating was diesel powered and commonly leaked fluids such as fuel, oil, or waste tank fluid. As he stepped up, plaintiff did not notice anything wet, slippery, or broken, and "everything seemed normal[.]" Plaintiff could not be sure what caused him to fall, and did not notice any oil, debris, or other substance on the platform as he stepped up. Plaintiff was wearing NJT-approved 2

3 footwear, and did not notice any slippery substance on his footwear before operating the train. Plaintiff testified that he was "only guessing that there had to be something on the platform." In April 2013, plaintiff filed a complaint in the Law Division, alleging negligence under the Federal Employer's Liability Act (FELA), 45 U.S.C.A. 51 to 60. Defendant moved for summary judgment which was granted on June 6, The motion judge found that there was no evidence that "there was anything [on the platform] that he could have slipped on," and that a jury would "be stuck with the same sort of speculation that [plaintiff] has." On appeal, plaintiff claims that summary judgment was not warranted under FELA or New Jersey law; NJT failed to provide a safe workplace; and plaintiff established that genuine issues of material fact exist and there is sufficient evidence for a jury to determine that defendant was negligent. In reviewing a motion for summary judgment, we employ the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). A motion for summary judgment should be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the 3

4 affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, (1995) (quoting Rule 4:46-2). A genuine issue of material fact exists if "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 540. Section 1 of FELA provides: Every common carrier by railroad while engaging in 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.... [45 U.S.C.A. 51.] To recover under FELA, a plaintiff must establish four elements: (1) "that the defendant is a common carrier by railroad engaged in interstate commerce"; (2) "that they were employed by the defendant and assigned to perform duties which furthered such commerce"; (3) "that their injuries were sustained while they were employed by the common carrier"; and (4) "that their injuries resulted from the defendant's negligence." Felton v. Se. Pa. Transp. Auth., 952 F.2d 59, 62 (3rd Cir. 1991). A 4

5 plaintiff may prove these elements through either direct or circumstantial evidence. See Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 508, 77 S. Ct. 443, 449, 1 L. Ed. 2d 493, 500 (1957). FELA is a remedial statute that provides liberal recovery for injured workers, and "vest[s] the power of decision... in the jury in all but the infrequent cases where fair-minded jurors cannot honestly differ whether fault of the employer played any part in the employee's injury." Id. at 510, 77 S. Ct. at , 1 L. Ed. 2d at The standard for determining negligence and causation under FELA is "lenient." Hines v. CONRAIL, 926 F.2d 262, 267 (3d Cir. 1991). "If negligence is proved... and is shown to have 'played any part, even the slightest, in producing the injury,' then the carrier is answerable in damages even if 'the extent of the [injury] or the manner in which it occurred' was not '[p]robable' or 'foreseeable.'" CSX Transp., Inc. v. McBride, 564 U.S.,, 131 S. Ct. 2630, 2643, 180 L. Ed. 2d 637, 652 (2011) (second and third alterations in original) (emphasis omitted) (first quoting Rogers, supra, 352 U.S. at 506, 77 S. Ct. at 448, 1 L. Ed. 2d at 499; then quoting Gallick v. B & O R.R., 372 U.S. 108, , and n.8, 83 S. Ct. 659, 667, and n. 8, 9 L. Ed. 2d 618, , and n.8 (1963)). 5

6 Nonetheless, under FELA, a plaintiff must still show that an employer has breached its duty to exercise reasonable care in providing a safe workplace, which requires a showing that an employer "knows or should know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform and protect its employees." Gallose v. Long Island R.R. Co., 878 F.2d 80, (2d Cir. 1989). FELA "does not make the employer the insurer of the safety of his employees while they are on duty." Ellis v. Union Pac. R.R. Co., 329 U.S. 649, 653, 67 S. Ct. 598, 600, 91 L. Ed. 572, 576 (1947). The basis of liability under FELA must be the employer's negligence, and not just "the fact that injuries occur." Ibid. "[T]hat negligence must be 'in whole or in part' the cause of the injury." Ibid. (citing 45 U.S.C.S. 51). To submit a FELA case to a jury, there must be "a reasonable basis in the record for concluding that there was negligence which caused the injury." Ibid. Where a case turns on controverted facts or the credibility of witnesses, it is "peculiarly one for the jury." Ibid. In this case, even considering the facts in a light most favorable to him, plaintiff has failed to present sufficient evidence that would allow a reasonable factfinder to conclude that his injuries resulted from defendant's negligence. 6

7 Plaintiff asserts that the motion judge erred in granting summary judgment in defendant's favor because a jury could find that "oil or other fluid which [plaintiff] was required to work in while operating the diesel locomotive stayed on his footwear and was a cause of his slipping while boarding the cab car." This assertion is speculative. In his statement, plaintiff noted that "everything seemed normal" on the day he fell, and that "[he] didn't notice anything wet; [he] didn't notice anything slippery; [and he] didn't notice anything broken[.]" Plaintiff has not identified any potential hazard on the platform or on his footwear, let alone one that was under defendant's control and about which defendant should have been aware. The fact that the diesel-powered trains tend to leak fluid does not raise an issue of material fact regarding defendant's negligence. Plaintiff has not presented any evidence of a fluid being present on the day of his fall, or that the train in this case has previously leaked fluid. Plaintiff further argues that the lower court erred because it made a credibility determination, and therefore the case should have been submitted to a jury. The motion judge specifically addressed this argument, stating that "this is not a credibility finding" because this was not a case where plaintiff even made conflicting statements, but rather, "when 7

8 you read all of [plaintiff's] statements together[,] at best his argument is there must have been something there or I would not have slipped...." By his own admission, plaintiff acknowledged that he was "only guessing that there had to be something on the platform." As such, we agree with the motion judge that a jury "would be stuck with the same sort of speculation that [plaintiff] has." We are satisfied that plaintiff cannot establish a claim under FELA as he has failed to produce sufficient evidence for a reasonable juror to conclude that his injuries resulted from defendant's negligence. Affirmed. 8

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