Unpublished Disposition, 917 F.2d 566 (9th Cir. 1987)

MEMORANDUM^* 

We must determine whether the district court properly directed a verdict for the defendant railroad in this Federal Employer's Liability Act action.

* Myra Dewitty worked as a waitress for the National Railroad Passenger Corporation ("Amtrak"). One evening, while off-duty, Dewitty was sleeping in an upper berth when she woke up needing to use the restroom. In the words of Ms. Dewitty, " [t]he next thing I knew, I was on the floor."

After gathering herself, Dewitty reported the fall to train attendant David Albert. When the train arrived in Los Angeles, Dewitty was met by Amtrak manager Sandra Thompson. Dewitty recounted the details of the accident and complained about soreness on her left side and about a bruise on her left thigh. Dewitty has subsequently experienced, among other things, bad headaches, additional back and leg pain, numbness, and "panic attacks." She has seen a number of physicians for these alleged medical problems.

The berth in which Dewitty slept did not contain hooks used to fasten safety straps. The straps, which extend from the ceiling of the dorm room to the outer edge of the upper berth, could be used to prevent persons from falling out of the upper berth. However, it is necessary to unlatch the straps in order for a person to get out of the upper berth.

On February 19, 1987, Dewitty filed suit against Amtrak alleging negligence, failure to provide a safe place to work, and failure to properly equip the car. All three counts rested on Amtrak's failure to provide safety straps on the berths.

The case went to trial in January 1989. At the close of Dewitty's case, Amtrak moved for a directed verdict on the ground that Dewitty had failed to make out a prima facie case of employer negligence. The court recessed to consider the motion. When it reconvened one and a half hours later, Dewitty attempted to introduce a 78-page exhibit containing, among other things, the maintenance records of the dormitory car at issue. The district court refused to receive the exhibit, and proceeded to grant Amtrak's motion for a directed verdict. This timely appeal followed.

II

In its statement of the case, Amtrak argues that Dewitty's Notice of Appeal is "defective and ineffective" because it was taken from the district court's order of nonsuit, rather than from the corresponding judgment which followed. While Dewitty did commit a procedural error, it does not warrant dismissal of the appeal since Dewitty's error did not result in Amtrak's failure to comprehend the scope or subject matter of the appeal. See Washington State Health Facilities Ass'n v. Washington State Dep't of Social and Health Servs., 879 F.2d 677, 681 (9th Cir. 1989).

III

Dewitty contends that the district court erred in refusing to admit an exhibit containing maintenance records pertaining to the dorm car in which she was sleeping. We review a district court's evidentiary decisions for an abuse of discretion. See LuMetta v. United States Robotics, Inc., 824 F.2d 768, 770 (9th Cir. 1987).

While Dewitty's argument centers on maintenance records, her proffered exhibit contained far more than that. If Dewitty wished to admit those records, she could have extracted them and then introduced them through an authenticating witness. In order to qualify under the business records exception, which Dewitty argues, she would have had to call a witness to testify to the documents' preparation in the ordinary course of business. See Miller v. Fairchild Indus., Inc., 885 F.2d 498, 513-14 (9th Cir. 1989), cert. denied, 110 S. Ct. 1524 (1990). She did not do so, and presumably could not have in light of the breadth of the documents contained in the exhibit. Accordingly, the district court did not abuse its discretion in excluding the exhibit for lack of foundation.

IV

We turn to the primary issue raised in this appeal--whether the district court erred in granting Amtrak's motion for a directed verdict. A motion for a directed verdict is reviewed under the same standard as that applied to judgments notwithstanding the verdict. See Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir. 1985), cert. denied, 475 U.S. 1122 (1986). The reviewing court will "apply [ ] the same standard used by the district court." The Jeanery, Inc. v. James Jeans, Inc., 849 F.2d 1148, 1151 (9th Cir. 1988). A directed verdict will, therefore, be upheld only

when the evidence permits only one reasonable conclusion as to the verdict. It is inappropriate if there is substantial evidence to support a verdict for the non-moving party. We consider all of the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party.

Peterson, 771 F.2d at 1256 (citations omitted).

The Federal Employer's Liability Act ("FELA"), 45 U.S.C. §§ 51-60, is the exclusive remedy for a railroad employee injured or killed by the negligence of the railroad or its agents. See Wabash R.R. v. Hayes, 234 U.S. 86, 89 (1914); see also Janelle v. Seaboard Coast Line R.R., 524 F.2d 1259, 1261 (5th Cir. 1975). Although the concepts underlying FELA have been largely fashioned from the common law, the rights embodied in the statute are exclusively a question of federal law. See, e.g., Dice v. Akron, Canton & Youngstown R.R., 342 U.S. 359, 361 (1952).

The standard for negligence under FELA was announced by the Supreme Court in the seminal case of Rogers v. Missouri Pacific R.R., 352 U.S. 500 (1957):

Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.... The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference.

Id. at 506, 508 (footnote omitted). Although the burden on a FELA plaintiff is not onerous, neither is it nonexistent. The plaintiff must "present probative facts from which the negligence and the causal relation could reasonably be inferred." Dessi v. Pennsylvania R.R., 251 F.2d 149, 151 (3d Cir.), cert. denied, 356 U.S. 967 (1958). A plaintiff must not only prove the employer's negligence, but that the negligence was the actual and proximate cause of the plaintiff's injuries. See Chesapeake & Ohio Ry. v. Carnahan, 241 U.S. 241, 244 (1916). Although FELA is construed broadly, it does not impose strict liability on employers. See Robert v. Consolidated Rail Corp., 832 F.2d 3, 6 (1st Cir. 1987).

To recover under FELA, a plaintiff must establish that her employer could have foreseen that injury to the employee was likely or probable. See Buell v. Atchison, Topeka and Santa Fe Ry., 771 F.2d 1320, 1322 (9th Cir. 1985), aff'd and vacated on other grounds, 480 U.S. 557 (1987); see also Green v. River Terminal Ry., 763 F.2d 805, 809 (6th Cir. 1985) ("Although the standard for granting a directed verdict favors plaintiffs in FELA cases, there must be some evidence of foreseeability for a plaintiff to withstand a motion for directed verdict."). Here, the record is devoid of any evidence that Amtrak could have foreseen this accident outside of the context of a sudden stop or derailment. Dewitty presented no evidence that Amtrak was aware of prior incidents of persons falling from upper berths. She did not introduce evidence of regulations, industry customs or usages regarding the safety measures for upper berths. When the record is devoid of any evidence of foreseeability, a directed verdict is appropriate. See Green, 763 F.2d at 809.¹ 

Dewitty also failed to fulfill her burden of proof regarding causation. " [A]lthough a plaintiff need not make a showing that the employer's negligence was the sole cause, there must be a sufficient showing (i.e., more than a possibility) that a causal relation existed." Moody v. Maine Central R.R., 823 F.2d 693, 695 (1st Cir. 1987). Dewitty presented no evidence that her fall was in any way related to the absence of the straps. In order to get out of an upper berth, the occupant would have to unhook the straps. Accordingly, Amtrak could be negligent only if Dewitty rolled out of bed before actually attempting to alight; if she were in the process of actually getting out of bed, the straps would presumably be undone. Dewitty failed to provide any evidence on this score. Dewitty testified: "I remember that I was sleeping, and I remember that I had a thought to go to the bathroom, and the next thing I knew I was on the floor." The gap between the "thought" and being "on the floor" is critical. Dewitty neither explains what happened then, nor provides an explanation as to why she cannot recall. Dewitty's failure to proffer any evidence that she was not getting out of bed at the time of her fall is a fatal flaw in her case.

AFFIRMED.

NELSON, Circuit Judge, dissenting:

I must respectfully dissent because I feel that a jury could have found both a breach of the railroad's duty and causation. Since a "jury verdict under the FELA can be permitted solely on the basis of speculation," Gibson v. Elgin, Joliet & Eastern Ry., 246 F.2d 834, 837 (7th Cir.), cert. denied, 355 U.S. 897 (1957); see also Curry v. United States, 327 F. Supp. 155, 163 (N.D. Cal. 1971), it is rather understated to say that "the burden on a FELA plaintiff is not onerous." Majority Op. at 5. In fact, the burden is very slight indeed.

With respect to breach of duty, the jury could have found, notwithstanding the lack of evidence as to the straps' purpose, that the railroad's failure to provide the straps amounted to a per se violation of its duty to provide a safe workplace.

On the issue of causation, the majority finds a "critical" gap between Dewitty's thought about going to the bathroom and her finding herself on the floor. Majority Op. at 7. As a result, it finds that she was getting out of bed when she fell, and thus would have already removed the straps had they been there. On the basis of her statement alone, I cannot subscribe to the majority's rigid dichotomization of the states of deep slumber and wide-eyed alertness. Because I believe the jury could have found that Dewitty was dozing or blearily awakening when she had her "thought," I think it could have found causation. In order to allow a directed verdict to stand on the causation issue, our only possible inference must be that Dewitty was awake and getting out of bed. I am unable to read her statement with such clarity.