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Royal v. Missouri & Northern Arkansas Railroad Company, Inc.

United States Court of Appeals, Eighth Circuit

May 22, 2017

Shawn Royal; Regina Royal Plaintiffs-Appellants
v.
Missouri & Northern Arkansas Railroad Company, Inc.; Rail America, Inc.; Genesee & Wyoming, Inc. Defendants-Appellees

          Submitted: April 6, 2017

         Appeal from United States District Court for the Western District of Arkansas-Texarkana

          Before GRUENDER, MURPHY, and KELLY, Circuit Judges.

          GRUENDER, Circuit Judge.

         Shawn Royal, a North American Railway Services ("NARS") employee, and his wife, Regina Royal, sued Missouri & Northern Arkansas Railroad Company ("MNA") for injuries he sustained while working on MNA's railroad tracks. They sought relief pursuant to the Federal Employers' Liability Act ("FELA") and under Arkansas negligence law. The district court[1] granted MNA's motion for summary judgment, and the Royals appealed. For the reasons discussed below, we affirm.

         In February 2012, NARS entered into a Master Service Agreement with RailAmerica Transportation Corporation ("RailAmerica") to provide track-related services to RailAmerica's affiliated and subsidiary railroads. At the time, MNA was a wholly owned subsidiary of RailAmerica. The Agreement stipulated that NARS "is not an agent, representative, or employee of [RailAmerica] or any of its Railroads, but rather is an independent contractor." The Agreement also stated that NARS "shall be responsible for all actions of its employees, subcontractors, agents and representatives" while working at the railroad sites and that RailAmerica and its subsidiaries had the right to inspect and test NARS's work and direct NARS to make corrections as needed.

         NARS employed Shawn Royal to operate a ballast regulator and sent him to perform maintenance work at several different railroad locations. NARS provided Royal with safety training and equipment instruction, furnished his personal protective and service equipment, and was responsible for all of his compensation. Pursuant to his employment with NARS, Royal did maintenance work on MNA's railroad tracks, which involved operating a machine that picked up and spread ballast, the stone or material placed around railroad tracks that provides structural support, drainage, and erosion protection. While working as a NARS employee on MNA's railroad tracks, Royal was required to abide by RailAmerica-MNA safety guidelines. For example, the safety guidelines directed NARS employees to refrain from drug or alcohol use while on the job. Furthermore, for certain forms of railroad maintenance work, the safety guidelines mandated job briefings with MNA employees or for an MNA employee to be present. An MNA employee would also coordinate locations and schedules for work assignments. Nonetheless, Royal's chain of command consisted only of NARS employees, and NARS maintained sole authority to discipline or fire Royal. While Royal testified that MNA often told him to "hurry up, " he also stated that MNA did not rush him on the day of the incident and never directed or controlled how he was to perform his work.

         On September 25, 2012, Royal was operating his ballast regulator on MNA's railroad tracks when his machine picked up and struck a piece of "rip-rap, " a large rock mixed in with the smaller ballast. In certain areas around railroad tracks, rip-rap is commonly placed for structural integrity. However, rip-rap can also be dangerous because if it is pulled onto the railroad tracks, a ballast regulator may run over it, abruptly stopping the machine and injuring the driver. Royal often encountered riprap while working on his ballast regulator; was trained to spot it; and had struck a piece three weeks prior, bringing his machine to a sudden stop. This time, Royal struck the rip-rap and was thrown forward, causing back injuries.

         The Royals sued MNA claiming that MNA supervised and controlled Shawn Royal's work, and as such, he was MNA's employee and entitled to hold MNA liable under FELA. Additionally, the Royals alleged that MNA was liable for negligently placing rip-rap in the ballast section near its railroad tracks. The district court granted MNA's motion for summary judgment, and the Royals now appeal.

         We review a district court's grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party and giving the non-moving party the benefit of reasonable inferences evident from the record. Francisco v. Burlington N. R.R. Co., 204 F.3d 787, 789 (8th Cir. 2000). Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The Royals challenge the district court's grant of summary judgment on both the FELA and Arkansas negligence claims.

         FELA allows employees of interstate railroads to recover against railroads for injuries sustained in the course of employment. Cowden v. BNSF Ry. Co., 690 F.3d 884, 889-90 (8th Cir. 2012). FELA states that "[e]very common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce." 45 U.S.C. §51. Thus, in order to maintain a FELA action against MNA, the Royals must demonstrate that Royal was employed by MNA.

         While the Royals concede that Royal was formally an employee of NARS, not MNA, they are correct that our inquiry does not end there. In Kelley v. Southern Pacific Co., the Supreme Court noted that for FELA purposes, "employment" describes a master-servant relationship "determined by reference to common-law principles." 419 U.S. 318, 323 (1974). Under the common law, a plaintiff can establish employment with a railroad carrier even while nominally employed by another if he can show he is (1) a borrowed servant, (2) a dual servant, or (3) a subservant. Id. at 324. Determining whether a plaintiff constitutes a borrowed servant, dual servant, or subservant turns on whether the railroad controlled or had the right to control the plaintiff's performance of his job. Vanskike v. ACF Indus., Inc., 665 F.2d 188, 198-99 (8th Cir. 1981) (citing Kelley, 419 U.S. at 322-26).

         Royal does not qualify as MNA's employee because the evidence shows that NARS was the sole entity that had the right to control his work. Royal's chain of command consisted only of NARS employees. NARS hired him, trained him, and sent him to do maintenance work on railroads. NARS was responsible for all of Royal's compensation and maintained sole authority to discipline or fire him. Furthermore, NARS provided all safety training and equipment instruction to Royal and furnished all his personal protective and service equipment. Royal responds that MNA nonetheless controlled or had the right to control his work because MNA employees often told him to "hurry up, " he was required to abide by RailAmerica-MNA safety guidelines, MNA employees inspected his work, and an onsite MNA employee coordinated locations and schedules for work assignments. These facts, however, are immaterial because they would not allow a reasonable jury to find that MNA controlled or had the right to control Royal's work.

         First, Royal's testimony that MNA employees told him to hurry up is not a material fact when examined against the backdrop of his entire testimony. Elsewhere, Royal testified that nobody rushed him on the day of the incident and that MNA never directed him on how to operate his ballast regulator. Thus, Royal's lone reference to being hurried is not enough to allow a reasonable jury to find that MNA controlled or had the right to control Royal's work. See Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010) ("A mere ...


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