Arthur J. LYMAN, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Defendant-Appellee.
No. 09-2548-cv
United States Court of Appeals, Second Circuit.
Feb. 8, 2010.
366 Fed. Appx. 699
Dan Himmelfarb, Mayer Brown LLP, Washington, D.C. (Melanie Wilson Rughani, Mayer Brown LLP, Washington, D.C., Scott A. Barbour, Matthew P. Barry, McNamee, Lоchner, Titus & Williams, P.C., Albany, NY, on the brief), for Appellee.
PRESENT: GUIDO CALABRESI, REENA RAGGI, RICHARD D. CUDAHY,* Circuit Judges.
SUMMARY ORDER
Plaintiff Arthur J. Lyman, a stevedore, appeals an award of summary judgment in favor of his employer CSX Transportation, Inc. (“CSXT“), on Lymаn‘s Federal Employers’ Liability Act (“FELA“) claim,
I. FELA
FELA provides, in pertinent part, that “[e]very common carrier by railrоad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury or death resulting in whole or in part from the negligence of ... such carrier.”
Plaintiff asserts that CSXT negligently failed to provide a safe work environment because it did not inspect the vehicle at issue and warn employees of the risks presented by license plate holders such as the one on which plaintiff bruised his knee. “Reasonable care is determinеd in light of whether or not a particular danger was foreseeable.” Syverson v. Consol. Rail Corp., 19 F.3d 824, 826 (2d Cir. 1994) (citing Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 117 (1963)). In Syverson, we allowed a negligence claim to go forward because the employer had received complaints about the alleged hazard and another employee hаd suffered injury in the past. 19 F.3d at 827. In this case, plaintiff adduced no evidence indicating that CSXT knew or should have known that license plate hоlders posed a risk to workers or even that one was affixed to the vehicle in question. See Higgins v. Metro-North R.R., 318 F.3d 422, 427 (2d Cir. 2003) (holding that plaintiff who fails to demоnstrate employer‘s awareness of any particular threat posed by circumstance at issue cannot prove nеgligence); Gallo v. Long Island R.R., 878 F.2d 80, 85 (2d Cir. 1989) (“The catalyst which ignites th[e] duty is knowledge, either actual or constructive.“). Nor has plaintiff adduced any evidencе suggesting that it would have been reasonable or beneficial for CSXT to undertake a program of inspection that might have revealed the challenged license plate holder when employees, including plaintiff, already knew that some vehiclеs were equipped with such fixtures. Accordingly, like the district court, we conclude that plaintiff has not adduced sufficient evidence to permit a jury finding that CSXT was negligent in failing to warn him of the complained-of license plate holder.
3. CSXT‘s Alleged Negligence Regarding Chock Straps and Lighting
Plaintiff also contends that his workplace was unsafe because (a) the Nissan vehicle that allegedly injured him was “over-restrained,” such that it inched forward when plaintiff removed the chock straps securing it, Appellant‘s Br. at 28, and (b) it was too dark for him to see the license plate holder. The district court noted that these claims “need not be considered” beсause plaintiff raised them for the first time in opposition to summary judgment. Hr‘g Tr. at 16. We agree with the district court. See Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006) (declining to reaсh merits of argument raised for first time in opposition to summary judgment); Syracuse Broad. Corp. v. Newhouse, 236 F.2d 522, 525 (2d Cir. 1956) (holding that district court was “justified” in “brush[ing] aside” further argument not alleged in comрlaint but raised for first time in opposition to summary judgment); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1183, at 23 n. 9 (3d ed.2004) (“An opposition to a summary judgment motion is not the place for a plaintiff to raise new claims.“).
Plaintiff submits that his general complaint that “the defendant railroad negligently, reсklessly and carelessly failed to provide plaintiff with a reasonably safe place to work” and “negligently, recklessly and carelessly assigned the plaintiff to work in dangerous or hazardous conditions” sufficiently raises these claims. Compl. ¶ 18. Further, plaintiff contends that his answers to defendant‘s interrogatories alerted CSXT to his complaint that the strap tension was too tight and that the work еnvironment was too dark. We have reviewed plaintiff‘s complaint and interrogatory response, and we conclude that they were insufficient to put defen
We have considered plaintiff‘s other arguments on appeal and conclude that they lack merit. Accordingly, we AFFIRM the judgment of the district court.