BROWN v. NBM RAIL SERVICES INC

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

DANIEL A. BROWN, )

)

Plaintiff, )

) 1:21-cv-00101-JAW

v. )

)

NBM RAIL SERVICES, INC., )

)

Defendant. )

ORDER AFFIRMING IN PART AND REJECTING IN PART THE

RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

A defendant railroad objects to the Magistrate Judge’s recommendation that

the Court deny summary judgment on a plaintiff railroad worker’s claim that the

railroad violated 45 U.S.C. § 51 by acting negligently when it failed to provide him

with a hydraulic machine to remove screw spikes. Because a railroad company is

not liable under 45 U.S.C. § 51 for failing to provide the best or safest tool to its

workers so long as it provides a reasonably safe tool, the Court rejects the

Magistrate Judge’s recommended decision as to the railroad worker’s theory that

the railroad acted negligently when it provided him with a claw bar to remove screw

spikes but failed to provide him with a hydraulic machine. The Court otherwise

affirms the Magistrate Judge’s recommended decision to grant summary judgment

to the railroad as to the railroad worker’s other two legal theories and thereby

grants summary judgment on the railroad worker’s 45 U.S.C. § 51 claim.

I. PROCEDURAL HISTORY

On April 8, 2021, Daniel Brown filed a complaint under Title 45 U.S.C. § 51,

et seq., the Federal Liability Act (FELA), and Title 49 U.S.C. § 20701, et seq., the

Federal Locomotive Inspection Act (FLIA). Compl. (ECF No. 1).1 On April 7, 2022,

NBM Rail Services (NBM Rail) filed a joint statement of stipulated facts. Joint

Statement of Stipulated Facts Deemed Admitted Solely for Purpose of Summ. J.

(ECF No. 35) (JSSF). On April 12, 2022, NBM Rail filed a motion for summary

judgment on all claims, Mot. for Summ. J. (ECF No. 38) (Mot. for Summ J.), and its

statement of material facts. Def.’s Statement of Material Facts (ECF No. 39)

(DSMF). On May 4, 2022, Mr. Brown filed his response to NBM Rail’s motion for

summary judgment, Response to Mot. for Summ. J. (ECF No. 41) (Pl.’s Opp’n), and

his opposition to NBM Rail’s statement of material facts. Pl.’s Opp’n to Def.’s

Statement of Material Facts and Additional Statement of Material Facts (ECF No.

42) (PSAMF). On May 24, 2022, NBM Rail filed a reply in support of its motion for

summary judgment. Reply in Supp. of Mot. for Summ J. (ECF No. 45).

The United States Magistrate Judge filed with the Court on October 13, 2022

his Recommended Decision, recommending that the Court grant NBM Rail’s motion

as to the Plaintiff’s allegation that the mere use of a claw bar constitutes

negligence, that the Court deny the Plaintiff’s motion to amend the complaint to

assert a failure to train claim or, alternatively, grant its motion for summary

judgment on that issue, and deny its motion as to Plaintiff’s claim that the

1 During the litigation, Mr. Brown dropped his FLIA claim and chose to pursue only his FELA

claim. Recommended Decision at 17 n.6; Mot. for Summ J. at 16.

Defendant was negligent for directing him to use a claw bar and not a hydraulic

machine to remove screw spikes. Recommended Decision on Mot. for Summ. J.

(ECF No. 49) (Recommended Decision). NBM Rail filed its objection to the

Recommended Decision on October 27, 2022. Obj. to Report and Recommended

Decision (ECF No. 50) (Def.’s Obj.). Mr. Brown filed his response to NBM Rail’s

objection on November 10, 2022. Resp. to Obj. to Report and Recommended Decision

(ECF No. 51) (Pl.’s Resp.).

II. FACTS

A. Background

Mr. Brown is a resident of Orneville Township, in Piscataquis County, Maine.

Compl. ¶ 1. He worked for Eastern Maine Railway from June 2017 until December

2017. PSAMF ¶ 1. NBM Rail hired Mr. Brown on April 10, 2018, as a temporary

track laborer. JSSF ¶ 2.

B. Railway Fasteners

A railway consists of steel running rails installed on crossties embedded in

the ground and surrounded by stones known as ballast. DSMF ¶ 1. Tie plates are

located between the crossties and the running rails, forming a part of the system

used to fasten the track components together and to disperse the load of the passing

trains. DSMF ¶ 2. The safety and efficacy of a railway demands the use of an

appropriate system to fasten the running rails, tie plates, and crossties in place and

to one another; in the absence of an appropriate fastening system, the forces applied

by a train could move the rails out of position, creating a risk of derailment. DSMF

¶ 3. There exists a variety of means to fasten a running rail to a crosstie. DSMF ¶

4.

One of the most prevalent means to fasten a running rail to a crosstie

involves the use of cut spikes, which are angled, unthreaded spikes. DSMF ¶ 5.2

The cut spike is driven through a square hole in the tie plate into the crosstie, with

the angled head of the cut spike pressing down on the running rail, thereby

securing the running rail in place, with additional cut spikes installed as necessary

to secure the tie plates to the crossties. DSMF ¶ 6. Another prevalent fastening

system involves the use of an “elastic fastener,” which functions as a clip attached to

the tie plate to hold down the running rail. DSMF ¶ 7. In such a system, a screw

spike is used to bolt the tie plate to the crosstie. DSMF ¶ 8. Unlike cut spikes,

screw spikes do not contact the running rail. DSMF ¶ 9. Screw spikes are threaded

and have flat washer heads. DSMF ¶ 10.

A railway turnout is the place where a train may be diverted from one track

to another. DSMF ¶ 12. A railway switch is the mechanism that diverts a train

from one track to another. DSMF ¶ 11. Cut spikes and screw spikes may be used

in combination to fasten different components in a railway switch area. DSMF ¶

11.

C. Claw Bar Tool

Running rails, tie plates, crossties, and the attendant fastening systems

require periodic maintenance and at times, replacement. DSMF ¶ 14. In a project

that requires the removal of running rails or crossties, track maintenance personnel

2 To view each fastening method, see DSMF ¶¶ 5-10.

must remove the fasteners used to secure the running rails and tie plates to the

crossties, regardless of whether the fasteners are screw or cut spikes. DSMF ¶ 15.

The tool used to remove the fasteners depends on the circumstances, including the

condition of the running rail, tie plate, or fastener and the location of the fastener

relative to other equipment. DSMF ¶ 16.

A claw bar is a specialized tool used in the railway industry to remove

fasteners. DSMF ¶ 18. A claw bar is an approximately five-foot long metal bar,

with one end designed to slide underneath the head of a fastener. DSMF ¶ 20. The

user applies force to the other end of a claw bar to lift the head of the fastener.

DSMF ¶ 21. The user can adjust the amount of force conveyed, backing off or

ceasing to apply force entirely if the claw bar does not prove effective at removing

the fastener. DSMF ¶ 23. Unlike larger powered tools, such as a hydraulic spike

puller or on-track maintenance machine, a claw bar conveys force based only on the

manual force generated by the user. DSMF ¶¶ 22-23. A claw bar is particularly

useful for removing fasteners in switch areas, where many of the track components

could be together in a tight space, making it difficult to use powered tools. DSMF ¶

23.

A track maintenance worker can attempt to remove both cut spikes and

screw spikes with a claw bar provided the claw bar user can fit the end of the claw

bar underneath the head of the fastener. DSMF ¶ 25. If the fastener is too deeply

embedded in the crosstie or is otherwise stuck, the user can cease using the claw

bar. DSMF ¶ 28.

D. Daniel Brown’s Experience and Injury

Mr. Brown worked most of his life as a truck driver. PSAMF, Attach 2,

Plaintiff’s Declaration ¶ 2. When he was employed by Eastern Maine Railway and

Defendant, Mr. Brown spent virtually all his time driving trucks or operating heavy

equipment. Id. ¶¶ 5, 10; JSSF ¶ 3. Mr. Brown was never trained in the use of a

claw bar by Eastern Maine Railway or NBM Rail, and he had never used a claw bar

before the date of his injury. PSAMF ¶¶ 2–5.

NBM Rail assigned Mr. Brown’s crew to work on a segment of rail track near

Attleboro, Massachusetts. JSSF ¶ 4. The Attleboro project required Mr. Brown’s

crew to remove a defunct rail switch and replace it with straight track. JSSF ¶ 5.

On April 17, 2018, Mr. Brown performed his usual duties driving trucks and

operating a loader, but eventually he completed the work. Plaintiff’s Declaration ¶

11. The foreman asked Mr. Brown to assist the crew by removing screw spikes

holding a switch in place. Id. ¶¶ 12–13. According to Mr. Brown, the foreman told

him that the screws were normally removed with a hydraulic machine, but the

machine was broken. Id. ¶ 14. Mr. Brown asserts the foreman asked him to use a

claw bar because there was insufficient time to wait for another hydraulic machine.

Id. ¶ 15–16; JSSF ¶ 8. The claw bar he used was free from any defects. JSSF ¶ 9.

Prior to his injury, Mr. Brown never complained about or objected to having to use a

claw bar to remove screw spikes. JSSF ¶ 14.

The first two screw spikes Mr. Brown removed were in rotted wood, and he

removed the two screw spikes without incident. JSSF ¶ 11. Mr. Brown then

attempted to remove a third screw spike. JSSF ¶ 11. He was able to fit the end of

the claw bar underneath the head of the third screw spike, and he applied force to

loosen and remove it. JSSF ¶ 12. As he pulled on the claw bar, he injured his left

wrist. JSSF ¶ 13. Mr. Brown felt popping in his wrist and the immediate onset of

pain. Complaint ¶ 13. He experienced swelling and pain for a prolonged period and

later had surgery on the wrist. Supplemental Pl.'s Mem. of Law in Opp’n to Def.

Mot. for Summ. J. at 3 (ECF No. 40-1).

III. MR. BROWN’S CLAIM AND THE RECOMMENDED DECISION

Mr. Brown asserts three legal theories for his claim that NBM Rail violated

FELA by providing him with only a claw bar to remove railroad screw spikes. He

asserts (1) that the mere use of the claw bar was unsafe to the point of negligence

(the “unsafe tool” theory), Pl.’s Opp’n at 10; (2) that the railroad company

negligently failed to train him on the proper use of the claw bar (the “failure to

train” theory), id.; and (3) that the railroad company acted negligently when it

failed to provide him with a hydraulic machine to remove screw spikes (the “better

tool” theory). Id. at 8.

On October 13, 2022, the Magistrate Judge issued a recommended decision in

which he recommended that the Court grant summary judgment on Mr. Brown’s

first two legal theories—the unsafe tool and the failure to train theories—and deny

summary judgment on Mr. Brown’s third legal theory—the better tool theory.

Neither party filed an objection to the Recommended Decision regarding the

Magistrate Judge’s recommendation that the Court grant summary judgment on

Mr. Brown’s unsafe tool and failure to train theories. The Court reviewed and

considered the Magistrate Judge’s recommendation, together with the entire record,

and the Court made a de novo determination of all matters adjudicated by the

Magistrate Judge and affirms the Magistrate Judge’s Recommended Decision as to

the unsafe tool and failure to train theories. The Court therefore addresses only

Mr. Brown’s better tool theory.

The Magistrate Judge, after finding summary judgment appropriate as to

Mr. Brown’s first two legal theories, explained that the issue under the third legal

theory is “whether, under the circumstances in this case, a factfinder could

reasonably conclude that Defendant was negligent when it did not provide Plaintiff

with a hydraulic machine and directed him to use a claw bar.” Recommended

Decision at 9. The Magistrate Judge added that “[t]he summary judgment record,

when viewed most favorably to Plaintiff, reveals that the screws were normally

removed using a hydraulic machine but the machine was broken, and that

Defendant directed Plaintiff to use the claw bar because they were under time

pressures and could not wait for another hydraulic machine.” Id. (internal citations

omitted). He concluded that “[t]he record thus would support a finding that

Defendant did not follow its ordinary practice . . . [and a] factfinder could

reasonably infer that without the ‘time pressures,’ Defendant would have

maintained its ordinary practice.” Id. at 9-10. He explicated that “[w]hether under

the circumstances Defendant acted reasonably in not securing a hydraulic machine

and in directing Plaintiff to use the claw bar is a factual issue that precludes

summary judgment in favor of Defendant” because “Defendant’s normal practice,

the nature and reasonableness of the ‘time pressures,’ the location of another

hydraulic machine, and the time necessary to obtain another machine, are among

the factors for a factfinder to address.” Id. at 10.

IV. NBM RAIL’S OBJECTION

NBM Rail asserts that the Magistrate Judge erred in recommending that the

Court deny summary judgment on Mr. Brown’s better tool theory because “[a]s a

matter of law, the mere availability of a more sophisticated tool cannot transform

the tool used from ‘safe’ to ‘unsafe.’” Def.’s Obj. at 4. NBM Rail submits that

“[u]nder FELA, a railroad is not required to ‘eliminat[e] all dangers;’ rather, it must

only eliminate ‘those dangers which could be removed by reasonable care on the

part of the employer . . . in light of the normal requirements of the job.’” Id. at 5

(quoting Conway v. Consol. Rail Corp., 720 F.2d 221, 223 (1st Cir. 1983) (internal

citations omitted)). NBM Rail further asserts that “a railroad must provide tools

and equipment only ‘that are reasonably safe and suitable’ for the required job.” Id.

(quoting Soto v. S. Pac. Transp. Co., 514 F. Supp. 1, 4 (W.D. Tex. 1979), aff’d, 644

F.2d 1147 (5th Cir. 1981)).

NBM Rail argues that “the mere availability of a hydraulic spike puller does

not render the claw bar Plaintiff used unsafe,” id., and “FELA does not require a

railroad ‘to furnish [its] employee with the latest, best or most perfect appliance

with which to work, nor to discard standard appliances already in use that are

reasonably safe and suitable, even though later improvements have been

discovered.’” Id. at 5-6 (quoting Soto, 514 F. Supp. at 4 and collecting cases).

NBM Rail then submits that “[w]hen faced with a nearly identical fact

pattern, the District of Colorado . . . preclude[ed] recovery on a similar ‘better tool’

theory [i]n Miller v. BNSF Ry. Co. [when] a truck driver employed by a railroad

suffered an injury after he was asked to use a claw bar to remove railroad spikes.”

Id. at 7 (citing Miller, No. 15-CV-2268-WJM-NYW, 2017 U.S. Dist. LEXIS 70652, at

*2 (D. Colo. May 9, 2017)). NBM Rail explains how the district court rejected the

plaintiff’s theory that “the railroad breached its duty under FELA to provide him

with a reasonably safe tool” and “found that there was no genuine dispute that a

claw bar is a reasonably safe tool.” Id. (citing Miller, 2017 U.S. Dist. LEXIS 70652,

at *11-12). NBM Rail further explains how “[t]he court determined that ‘[s]ince, as

a matter of law, Defendant did provide a reasonably safe tool, namely, the claw bar,

then also as a matter of law, Defendant had no further duty to provide a safer or

more perfect tool.’” Id. at 7-8 (Miller, 2017 U.S. Dist. LEXIS 70652, at *11)

(emphasis in Miller). NBM Rail contends that the Magistrate Judge’s conclusion

that “Plaintiff has provided no evidence that would allow a factfinder to conclude

that a claw bar is . . . not a reasonably safe tool for employees to use in the removal

of fasteners” should have “ended the [c]ourt’s inquiry into the ‘better tool’ theory

and sufficed to grant summary judgment to NBM Rail.” Id. at 8.

Finally, NBM Rail argues that “the Recommended Decision on the better tool

theory is contrary to common law principles of negligence and is unsound as a

matter of policy.” Id. at 9. NBM Rail submits that “[u]nder established common

law principles, an employer is ‘not required to provide for the use of his employ[ee]s

the latest or safest appliances, even if in the opinion of competent mechanical

experts such appliances would have been more suitable or less dangerous.’” Id. at

9-10 (quoting Wilson v. Alexander, 230 Mass. 242, 244, 119 N.E. 754 (1918) and

collecting cases). NBM Rail further submits that “[i]f adopted, the Recommended

Decision on the better tool theory would create a new standard of liability under

FELA,” and “[u]nder this new standard, a railroad that typically uses a more

sophisticated tool, but which is required by circumstance to temporarily use a less

sophisticated (but still reasonably safe) alternative, may be liable for its employee’s

injury,” whereas “a railroad that chooses never to adopt the more sophisticated tool

could not be liable where the ordinary tool gave rise to the same injury.” Id. at 11.

NBM Rail asserts that “[t]his standard not only runs counter to the law, but is

unsound as a matter of policy.” Id.3

V. DANIEL BROWN’S RESPONSE

Mr. Brown contends that “[i]t is important to keep in mind that FELA is to be

construed liberally to permit the purposes of the act to be fulfilled” and that

“[b]ecause the underlying purpose of FELA is to protect injured railroad workers,

courts have frequently warned against removing cases from the jury except in rare

circumstances.” Pl.’s Resp. at 4 (citing Rogers v. Missouri P.R. Co., 352 U.S. 500,

3 NBM Rail additionally argues that even if the Court determines that a railroad can be found

negligent for failing to provide a hydraulic machine as in its ordinary practice, the Court should

nonetheless grant summary judgment on Mr. Brown’s better tool theory because “Plaintiff has

presented no evidence that a hydraulic machine is actually safer than a claw bar” and therefore

“cannot overcome summary judgment.” Def.’s Obj. at 11-12. The Court need not address this

argument here because the Court finds summary judgment appropriate as to Mr. Brown’s better tool

theory regardless of whether the hydraulic machine is a safer tool than the claw bar.

509 (1957)). Mr. Brown further contends that “in FELA cases, negligence is not to

be given a technically restricted or traditional meaning,” explaining that “[i]n the

First Circuit FELA [has] also been given liberal construction.” Id. (citing Robert v.

Consol. Rail Corp., 832 F.2d 3, 6 (1st Cir. 1987)). He argues that “[u]nder FELA

NBM [Rail] owed a duty to provide Mr. Brown with a reasonably safe work

environment . . . [and it] breached that duty by negligently failing to provide Mr.

Brown with adequate training on the use of a dangerous piece of equipment.” Id. at

5. Mr. Brown concludes that “[g]iven the low standard that applies to FELA claims,

there are genuine issues of material fact in dispute” and the Magistrate Judge

“appropriately denied the Defendant’s Motion for Summary Judgment as to the

Plaintiff’s claim that the Defendant was negligent in directing him to use a claw bar

rather than providing a hydraulic machine to pull the screw spike.” Id. at 7.

VI. LEGAL STANDARD

A. De Novo Review

The Court reviews any recommended decision by a magistrate judge on a

dispositive matter under 28 U.S.C. § 636(b)(1)(B), which requires the Court “make a

de novo determination” of “those portions of the report or specified proposed

findings or recommendations to which objection is made.” Id.; United States v.

Raddatz, 447 U.S. 667, 673-74 (1980).

B. Summary Judgment

Summary judgment is proper when “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). “Genuine issues of fact are those that a

factfinder could resolve in favor of the nonmovant, while material facts are those

whose ‘existence or nonexistence has the potential to change the outcome of the

suit.’” Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014)

(quoting Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd’s of London, 637

F.3d 53, 56 (1st Cir. 2011)).

When the movant “has made a preliminary showing that there is no genuine

issue of material fact, the nonmovant must ‘produce specific facts, in suitable

evidentiary form, to . . . establish the presence of a trialworthy issue.’” McCarthy v.

City of Newburyport, 252 F. App’x 328, 332 (1st Cir. 2007) (alteration in original)

(quoting Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)).

The nonmoving party must provide “‘enough competent evidence’ to enable a

factfinder to decide in its favor on the disputed claims.” Carroll v. Xerox Corp., 294

F.3d 231, 237 (1st Cir. 2002) (quoting Goldman v. First Nat’l Bank of Bos., 985 F.2d

1113, 1116 (1st Cir. 1993)). Then, a court “views the facts and draws all reasonable

inferences in favor of the nonmoving party,” Ophthalmic Surgeons, Ltd. v. Paychex,

Inc., 632 F.3d 31, 35 (1st Cir. 2011), but disregards “[c]onclusory allegations,

improbable inferences, acrimonious invective, or rank speculation.” Mancini v. City

of Providence ex rel. Lombardi, 909 F.3d 32, 38 (1st Cir. 2018) (quoting Ahern v.

Shinseki, 629 F.3d 49, 54 (1st Cir. 2010)). “[T]he plain language of Rule 56(c)

mandates entry of summary judgment . . . against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986).

VII. DISCUSSION

FELA allows railroad workers to seek compensation for injuries caused “in

whole or in part” by the railroad’s negligence. 45 U.S.C. § 51. FELA is firmly

rooted in the common law of negligence. See Conrail v. Gottshall, 512 U.S. 532, 543

(1994) (“[W]hile what constitutes negligence for [FELA’s] purpose is a federal

question, we have made it clear that this federal question generally turns on

principles of common law”) (internal citation omitted).

Under FELA, a railroad is not required to “eliminat[e] all dangers;” rather, it

must only eliminate “‘those dangers which could be removed by reasonable care on

the part of the employer’ . . . in light of the normal requirements of the job.”

Conway, 720 F.2d at 223 (quoting Padgett v. S. R. Co., 396 F.2d 303, 306 (6th Cir.

1968)). Significantly, FELA thereby does not require a railroad “to furnish [its]

employee with the latest, best or most perfect appliance with which to work, nor to

discard standard appliances already in use that are reasonably safe and suitable,

even though later improvements have been discovered.” Soto, 514 F. Supp. at 4.

This is a longstanding and well-recognized standard that courts apply to

FELA claims. See, e.g., Ezell v. BNSF Ry. Co., 949 F.3d 1274, 1282 (10th Cir. 2020)

(“[T]o show railroad negligence, FELA requires plaintiffs to show an unsafe

workplace—not a failure to provide the safest possible workplace”); Wright v. BNSF

Ry. Co., 177 F. Supp. 3d 1310, 1316 (N.D. Okla. 2016) (“[P]laintiff makes no

allegation that using the five-foot bar was unsafe, but only argues that there were

easier, better methods of completing the task. This alone cannot establish

negligence under FELA”); McFarland v. Burlington N. Santa Fe Ry. Co., No. 32066-

9-III, 2015 Wash. App. LEXIS 1465, at *9 (Ct. App. July 9, 2015) (“The existence of

a more suitable or safer tool is irrelevant if it is not shown that the tool used is

unsafe”); Hane v. Nat'l R.R. Passenger Corp., 110 F.3d 573, 575 (8th Cir. 1997)

(holding the trial judge’s instruction to the jury that the railroad was not “required

to furnish the latest, best and safest tools” to its employees “is an accurate

statement of a principle of law that has been in force for the last century”); Seymour

v. Ill. Cent. R. Co., 25 F. Supp. 2d 734, 738 (S.D. Miss. 1997), aff'd, 154 F.3d 418

(5th Cir. 1998) (“[T]he employer is not required to furnish the employee the latest,

best, or most perfect appliances with which to work . . . provided those in use are

reasonably safe and suitable”); McKennon v. CSX Transp., Inc., 897 F. Supp. 1024,

1027 (M.D. Tenn. 1995), aff'd, 56 F.3d 64 (6th Cir.1995) (“Under FELA, the proper

inquiry is whether the method [of work] prescribed by the employer was reasonably

safe, not whether the employer could have employed a safer alternative method for

performing the task”) (internal quotation marks omitted).

As the Magistrate Judge concluded and this Court concurs, Mr. Brown has

provided “no evidence that would allow a factfinder to conclude that a claw bar is an

inherently dangerous tool or that it is not a reasonably safe tool for employees to

use in the removal of fasteners,” and, in fact, “[t]he record establishes that a claw

bar is at times an appropriate tool to use in the removal of fasteners.”

Recommended Decision at 8. Courts have consistently held the claw bar to be a

reasonably safe tool for the removal of screw spikes. See Pfaffle v. BNSF Ry. Co.,

No. 2:17-CV-0407-TOR, 2020 U.S. Dist. LEXIS 24677, at *5 (E.D. Wash. Feb. 12,

2020) (“other courts that have addressed the issue have found the use of a claw bar

for removing spikes does not present an unreasonable risk of harm”); Miller, 2017

U.S. Dist. LEXIS 70652, at *10 (discussing expert testimony that claw bars “could

be used reasonably safely to remove spikes, that ‘every Class I railroad permits the

use of claw bars to remove spikes,’ [and] that it ‘is a reasonably safe tool to use to

remove spikes’”); Maxwell v. CSX Transp., No. 1:14-CV-0412-WBH, 2015 U.S. Dist.

LEXIS 188439, at *4 (N.D. Ga. 2015) (holding that plaintiff failed to establish the

railroad was negligent in requiring him to use a claw bar because “[p]laintiff has

presented no evidence that a claw bar, which the crew was forced to use in the

absence of the hydraulic device, is an unsafe device when in good condition and used

properly”).

NBM Rail cites Miller to support its assertion that a railroad cannot be found

negligent when it provides its workers with only a claw bar, even when a hydraulic

puller may be available but out of reach to the worker. 2017 U.S. Dist. LEXIS

70652. The Court finds Miller instructive. In Miller, a truck driver employed by a

railroad suffered an injury when the railroad instructed him to use a claw bar to

remove railroad spikes. Id. at *2. The truck driver claimed that there was a

hydraulic machine available on his truck, but that the railroad required him to

stage his truck in a location where the hydraulic machine could not reach the

spikes. Id. at *9. After he suffered an injury removing railroad spikes with a claw

bar, the truck driver claimed that the railroad breached its duty under FELA to

provide him with a reasonably safe tool. Id. at *11-12.

The Miller Court rejected this theory and concluded there was no genuine

dispute that a claw bar is a reasonably safe tool and that the railroad had no duty to

provide or even to allow the defendant to use a hydraulic machine. Id. at *11

(“Since, as a matter of law, Defendant did provide a reasonably safe tool, namely,

the claw bar, then also as a matter of law, Defendant had no further duty to provide

a safer or more perfect tool”) (emphasis in Miller). The Miller Court reasoned:

Since Defendant had no legal duty to provide a tool other than the claw

bar, Plaintiff’s negligence claim fails as a matter of law to the extent it

turns on any claim that Defendant should have ensured he could

instead use the hydraulic spike puller. Defendant cannot be held

liable for any conduct that Plaintiff claims contributed to his injury

only as a consequence of Defendant’s allegedly preventing the use of

the hydraulic spike puller.

Id. at *13. The Miller Court concluded that the railroad could not be held liable for

“any general claim that Defendant breached its duty to provide reasonably safe

tools by not providing for use of the hydraulic spike puller” or “any other alleged

conduct which Plaintiff claims caused his injury only as a consequence of being

unable to use the hydraulic spike puller.” Id. at *14.

Likewise, here the Court concludes that because the claw bar is a reasonably

safe tool for removing screw spikes and a railroad is only required by law to provide

its workers with a reasonably safe tool, there is no genuine issue of material fact as

to whether NBM Rail acted negligently in failing to provide Mr. Brown with a

hydraulic machine. Despite its regular practice of supplying its workers with a

hydraulic machine and regardless of why NBM Rail did not provide Mr. Brown with

a hydraulic machine in this instance, a reasonable jury could not find that NBM

Rail acted negligently because it in fact provided Mr. Brown with a reasonably safe

tool with which to perform his job.

VIII. CONCLUSION

The Court AFFIRMS in part and REJECTS in part the Magistrate Judge’s

recommended decision (ECF No. 49). The Court affirms the decision as it relates to

the Plaintiff’s first two legal theories—the unsafe tool and the failure to train

theories—and rejects the decision as it relates to the third legal theory—the better

tool theory. The Court thereby GRANTS Defendant NBM Rail’s Motion for

Summary Judgment (ECF No. 38) in its entirety.

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

Dated this 12th day of December, 2022