holding that when a court dismisses a pro se 19 plaintiff’s complaint, it must give the plaintiff leave to amend “[u]nless it is 20 absolutely clear that no amendment can cure the defect” in the complaint
How later courts described this case
- holding that when a court dismisses a pro se 19 plaintiff’s complaint, it must give the plaintiff leave to amend “[u]nless it is 20 absolutely clear that no amendment can cure the defect” in the complaint
- explaining FELA “plaintiffs are … required to prove traditional common law elements of negligence: duty, breach, foreseeability, and causation.”
- an employer "may not be held liable if it had no reasonable way of knowing that the hazard, which caused [Plaintiff's] injury, existed."
- “Because CSX had neither notice of prior extraordinary noise incidents nor notice that a defect existed in the retarder, we hold that the [loud shrill noise which allegedly damaged plaintiffs hearing] was not reasonably foreseeable by CSX.”
Written by the judges who cited it.
The opinion
FRANK A. KAUFMAN, Senior District Judge,
dissenting:
While the question is certainly not free from doubt, I conclude that there was sufficient evidence of complaints by other employees of similar loud noise from retarders before the occurrence in this case, that CSX knew of the same and had made attempts to reduce the noise level, and that the retarder in question was not up to standard. In the light of such evidence, the district court appropriately submitted to the jury the issue of negligence, including the component of reasonable foreseeability, and was correct in denying the interim and post-trial motions of CSX for judgment as a matter of law. Therefore, I would affirm the judgment below and respectfully dissent.