Raab v. Utah Railway

1 Even though Raab’s claim based on a violation of FLIA
operates through FELA, we refer to it throughout this opinion as
his “FLIA claim.”
2009 UT 61
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Scott Raab, 	Nos. 20080151
Plaintiff, Petitioner, 	20080184
and Appellant,
v.
Utah Railway Company, 	F I L E D
Defendant, Respondent,
and Appellee. 	September 18, 2009
---
Third District, Salt Lake
The Honorable L.A. Dever
No. 050908733
Attorneys: 	Stephen C. Thompson, Portland, OR, Trent J. Waddoups,
Salt Lake City, for plaintiff
E. Scott Savage, Stephen R. Waldron, Salt Lake City,
for defendant
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	This case comes to us on appeal from the district
court’s grant of summary judgment in favor of defendant Utah
Railway on plaintiff Scott Raab’s negligence claims brought under
the Federal Employers Liability Act (“FELA”) and the Federal
Locomotive Inspection Act (“FLIA”). 1 	Raab seeks recovery for
injuries suffered when he struck his head on an after-market air
conditioning unit installed in one of Utah Railway’s locomotives.
In his complaint, Raab alleges that Utah Railway was negligent in
(1) allowing its train to run with a lead locomotive that had a

2 Salt Lake City Mission v. Salt Lake City, 2008 UT 31, ¶ 5,
184 P.3d 599 (quoting Bowman v. Kalm, 2008 UT 9, ¶ 6, 179 P.3d
754).
3 A “consist” is a group of locomotives coupled together,
usually at the front of a train.
4 Utah Railway disputes that the lead locomotive’s dynamic
brake was defective, but for purposes of its motion for partial
summary judgment on the issue of the dynamic brake, Utah Railway
assumes that the locomotive did have a malfunctioning dynamic
brake. 	Our analysis proceeds under this assumption as well.
Nos. 20080151, 20080184 	2
defective dynamic break and (2) operating a locomotive with a
dangerously placed overhead air conditioning unit.
¶2 	The district court granted summary judgment in favor of
Utah Railway on both of Raab’s claims, holding, as a matter of
law, that (1) the alleged failure of the dynamic brake was not
the proximate cause of Raab’s injuries and (2) the placement of
the air conditioning unit did not violate FLIA or proximately
cause Raab’s injuries. 	We must determine whether the district
court correctly granted summary judgment in light of the
appropriate standard for causation under FELA and the standard
for a violation of FLIA. 	We reverse the district court’s
determinations because we conclude that the undisputed facts
require that both issues be determined by a jury.
BACKGROUND
¶3 	The relevant facts are essentially undisputed for
purposes of this appeal. 	We view these facts, in accordance with
our standard for reviewing a district court’s grant of summary
judgment, in the light most favorable to Raab, the nonmoving
party. 2
¶4 	On May 31, 2002, Raab was working as a conductor on a
train hauling coal from Helper to Provo. 	When the train reached
the top of Soldier Summit, the engineer stopped it to remove five
or six “helper” engines that had been coupled in the middle of
the line of cars to aid the train in its climb to the summit. 	At
the time he stopped the train for the purpose of removing the
“helper” engines, the engineer also suspected that the train’s
lead locomotive in the front consist 3 had a malfunctioning
dynamic brake, which would make it unsafe for the train to
descend through the canyon into Provo. 4

3 	Nos. 20080151, 20080184
¶5 	Because of his concern regarding the dynamic brake, the
engineer decided to replace the lead locomotive prior to
beginning the descent. 	Raab and the engineer removed the lead
locomotive from the front consist, replaced it with a locomotive
containing a properly functioning dynamic brake, and then
reassembled the front consist. 	Once the new front consist was in
place, Raab entered the cabs of each of the trailing locomotives
in the consist in order to ensure that the controls were set in a
way that would allow the trailing locomotive to be controlled
from the lead locomotive.
¶6 	During the process of checking the controls, Raab
entered the cab of one of the trailing locomotives, a 6000 series
engine. 	This locomotive contained an after-market air
conditioning unit that was attached to the ceiling of the
locomotive cab. 	While the air conditioning unit did not extend
over the entire cab ceiling, it effectively reduced the ceiling
height to approximately 5 feet 10 inches in the area where it was
attached. 	Raab, who is 6 feet 4 inches tall in his work boots,
stooped through the 5 foot 6 inch cab door and safely entered the
locomotive. 	Once through the cab door, however, he straightened
up before he had completely passed under the air conditioning
unit, driving his head upward against the air conditioner.
¶7 	As a result of his collision with the air conditioning
unit, Raab suffered herniated disks in his neck and upper back.
All of Raab’s claimed damages stem from these injuries.
¶8 	Raab sued Utah Railway to recover damages for his
injuries, seeking recovery on two separate theories. 	First, Raab
sought damages under FELA for Utah Railway’s alleged negligence
in allowing its train to be led by a locomotive with a defective
dynamic brake. 	Second, Raab sought damages under FLIA, claiming
that Utah Railway violated the statute by using the 6000 series
locomotive when the positioning of the air conditioner made the
locomotive unnecessarily dangerous.
¶9 	Utah Railway moved for summary judgment on Raab’s FELA
and FLIA claims. 	The district court granted both motions,
ruling, as a matter of law, that (1) Raab’s FELA claim failed
because the dynamic brake failure was not the proximate cause of
Raab’s injuries and (2) Raab’s FLIA claim failed because Utah
Railway had not violated the statute. 	In regard to Raab’s FLIA
claim, the district court also stated that “[t]he undisputed
facts in this case establish that this is a case of non-attention
incident to operation . . . .” 	We view this statement as the
district court’s determination that the placement of the air
conditioning unit was not the proximate cause of Raab’s injuries,

5 Murdock v. Springville Mun. Corp., 1999 UT 39, ¶ 12, 982
P.2d 65.
6 Gregory v. Mo. Pac. R.R. Co., 32 F.3d 160, 162 n.6 (5th
Cir. 1994) (citing numerous cases implying that “whether a
condition presents an ‘unnecessary peril to life or limb’ is an
issue of fact for the jury (assuming, of course, that the
evidence is not so one-sided that the jury could reach only one
conclusion)”); Steffensen v. Smith’s Mgmt. Corp., 820 P.2d 482,
487 (Utah Ct. App. 1991) (“[T]he issue of proximate cause should
be taken from the jury only where: 	(1) there is no evidence to
establish a causal connection, thus leaving causation to jury
speculation, or (2) where reasonable persons could not differ on
the inferences to be derived from the evidence on proximate
causation.”).
Nos. 20080151, 20080184 	4
and we evaluate it accordingly. 	Raab appeals the district
court’s decisions. 	We have jurisdiction pursuant to Utah Code
section 78A-3-102(3)(j) (2008).
STANDARD OF REVIEW
¶10 	We review a district court’s decision to grant summary
judgment for correctness, giving no deference to the district
court. 	Our review is limited to determining whether the district
court correctly applied the summary judgment standard in light of
the undisputed material facts. 5
¶11 	Both the question of whether a negligent act
proximately caused a defendant’s injury and the question of
whether a locomotive is unnecessarily dangerous in violation of
FLIA are questions of fact that must be submitted to the jury
unless a reasonable jury could reach only one conclusion based on
the material facts. 6 	In this case, because the relevant facts
are not disputed by the parties, we must determine whether the
district court correctly concluded, based on the undisputed
facts, that a reasonable jury could not find for Raab on his FELA
and FLIA claims.
ANALYSIS
¶12 	This case requires us to consider the proper causation
standard for FELA negligence claims and what constitutes an
“unnecessary danger of personal injury” under FLIA. 	FELA
provides railroad employees a federal statutory negligence cause
of action against their employers for injuries suffered during
the course of their employment:

7 45 U.S.C. § 51 (2006). 	Since there have been no
substantive changes to the statutes governing this case since the
events occurred, we cite to the current version throughout our
opinion.
8 Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 165-66 (2007)
(“Absent express language to the contrary, the elements of a FELA
claim are determined by reference to the common law.”).
9 Urie v. Thompson, 337 U.S. 163, 174 (1949) (“[FELA] does
not define negligence, leaving that question to be determined
. . . by the common law principles as established and applied in
the federal courts. . . . 	What constitutes negligence for the
statute’s purposes is a federal question, not varying in
accordance with the differing conceptions of negligence
applicable under state and local laws for other purposes.
Federal decisional law formulating and applying the concept
governs.” (internal quotation marks omitted)).
5 	Nos. 20080151, 20080184
Every 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 . . . for such injury or death
resulting in whole or in part from the
negligence of any of the officers, agents, or
employees of such carrier, or by reason of
any defect or insufficiency, due to its
negligence, in its cars, engines, appliances,
machinery, track, roadbed, works, boats,
wharves, or other equipment. 7
¶13 	Although FELA creates a statutory cause of action for
railroad employees, it is based on common law negligence
principles. 	The United States Supreme Court has interpreted FELA
as a statutory command to apply the principles of the common law,
except where those principles are specifically modified or
rejected by Congress in FELA itself. 8 	But while a FELA
negligence action incorporates the same basic elements as state
common law negligence actions--duty, breach, causation, and
damages--FELA provides a separate federal statutory basis for the
action, and the specific nature of each element is determined by
reference to the federal common law of FELA negligence rather
than to the common law negligence standards of the state in which
the particular injury occurred. 9 	Thus, FELA authorizes the
federal courts to develop a common law of railroad negligence--
within the parameters set by Congress.

10 See, e.g., Lilly v. Grand Trunk W. R.R. Co., 317 U.S.
481, 485 (1943) (stating in regards to violations of the Boiler
Inspection Act, a predecessor safety statute to FLIA, that “[a]ny
employee engaged in interstate commerce who is injured by reason
of a violation of the Act may bring his action under the Federal
Employers’ Liability Act, charging the violation of the Boiler
Inspection Act”).
11 49 U.S.C. § 20701 (2006).
12 Green v. River Terminal Ry. Co., 763 F.2d 805, 810 (6th
Cir. 1985) (“The liability imposed by the Locomotive Boiler
Inspection Act is absolute upon proof of an unsafe part and
proximate cause.”); see also Urie, 337 U.S. at 188-89.
Nos. 20080151, 20080184 	6
¶14 	FLIA, on the other hand, is a railroad safety statute
that expressly defines prohibited conduct but does not create a
cause of action for its violation. 	The Supreme Court has held
that violations of FLIA are actionable as negligence per se under
FELA. 10 	The provision of FLIA at issue in this case is 49 U.S.C.
§ 20701, which provides:
A railroad carrier may use or allow to be
used a locomotive or tender on its railroad
line only when the locomotive or tender and
its parts and appurtenances--
(1) are in proper condition and safe to
operate without unnecessary danger of
personal injury;
(2) have been inspected as required
under this chapter and regulations prescribed
by the Secretary of Transportation under this
chapter; and
(3) can withstand every test prescribed
by the Secretary under this chapter. 11
¶15 	Liability under FELA is absolute upon (1) proof of a
violation of FLIA and (2) proof that the FLIA violation was the
cause of the injuries suffered. 12 	Because an action based on an
alleged violation of FLIA operates through FELA, the FELA
causation standard applies to both Raab’s FELA and FLIA claims.
¶16 	We begin by analyzing the proper standard of causation
in FELA cases and then apply this standard to Raab’s FELA claim

13 352 U.S. 500, 506 (1957).
14 Raab disagrees with Utah Railway’s characterization of
his position as advocating the abolishment of proximate cause in
FELA negligence cases. 	Instead, Raab contends that he is simply
stating what the standard for causation under FELA is, rather
than making any argument about proximate cause. 	See, e.g.,
Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 179-80 (Ginsberg,
J., concurring). 	Nevertheless, Utah Railway’s assessment of the
substance of Raab’s argument is correct--Raab is essentially
arguing that “but for” causation alone is sufficient to establish
liability under FELA.
7 	Nos. 20080151, 20080184
regarding the dynamic brake. 	We then turn to Raab’s FLIA claim
regarding the placement of the air conditioning unit, first
assessing whether the district court properly concluded that,
based on the undisputed facts evident in the record, no
reasonable jury could have found that the placement of the air
conditioning unit violated FLIA and next considering whether the
district court correctly determined, as a matter of law, that the
placement of the air conditioning unit was not the cause of
Raab’s injuries.
I. 	THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON
RAAB’S FELA CLAIM BECAUSE, ALTHOUGH ROGERS DOES NOT ELIMINATE THE
REQUIREMENT THAT A FELA PLAINTIFF PROVE PROXIMATE CAUSE, A
REASONABLE JURY COULD HAVE CONCLUDED, BASED ON THE UNDISPUTED
MATERIAL FACTS EVIDENT IN THE RECORD, THAT THE FAILURE OF THE
DYNAMIC BRAKE WAS A PROXIMATE CAUSE OF RAAB’S INJURY
¶17 	Raab argues that, under the United States Supreme
Court’s decision in Rogers v. Missouri Pacific Railroad Co.,
summary judgment on causation is inappropriate so long as a
reasonable jury could conclude that Utah Railway’s conduct played
“any part, even the slightest” 13 in causing his injuries.
Because Raab’s injury would not have occurred absent the
engineer’s decision, due to his concern regarding the dynamic
brake, to replace the front consist at the top of Soldier Summit,
Raab contends that there is sufficient evidence of causation
under this standard to defeat Utah Railway’s motion for summary
judgment.
¶18 	Utah Railway characterizes Raab’s argument as an
assertion that Raab need only prove “but for,” rather than
“proximate,” causation on his FELA claim. 14 	Utah Railway
contends that Rogers did not eliminate the general requirement
that a FELA negligence plaintiff prove proximate causation and
argues that, under the normal common law standard of proximate

15 W. Page Keeton, et al., Prosser and Keeton on Torts § 41,
at 263 (5th ed. 1984) (“There is perhaps nothing in the entire
field of law which has called forth more disagreement, or upon
which the opinions are in such a welter of confusion. 	Nor,
despite the manifold attempts which have been made to clarify the
subject, is there yet any general agreement as to the best
approach.”).
Nos. 20080151, 20080184 	8
cause, summary judgment is justified because Raab’s injuries are
too remote from the alleged failure of the dynamic brake.
¶19 	In order to determine whether the district court
properly granted summary judgment to Utah Railway on Raab’s
dynamic brake claim, we must first assess the impact of Rogers on
the standard for proximate cause under FELA. 	Specifically, we
must determine whether Rogers eliminated or modified the well-
established rule that a plaintiff must prove that the defendant’s
negligence was the proximate cause of his injuries.
¶20 	We conclude that Rogers did not speak to the issue of
proximate cause. 	Rather, given that (1) reading Rogers as
eliminating the common law proximate cause requirement is not
mandated by either the statutory language or the Supreme Court’s
case law and (2) such a reading would be contrary to the Court’s
announced interpretive approach to FELA, we conclude that the
Rogers language only referred to the unavailability of
contributory negligence as a defense in FELA cases. 	We therefore
first make a determination as to what the proper standard of
proximate causation is under FELA and then evaluate Raab’s claim
under that standard. 	We conclude that, under the appropriate
rule, a reasonable jury could have found that the failure of the
dynamic brake was a proximate cause of Raab’s injuries.
A. 	Rogers Did Not Eliminate the Requirement That a FELA
Negligence Plaintiff Prove That a Railroad’s Negligent Act Was
the Proximate Cause of His Injuries
¶21 	As set out above, the parties dispute the extent to
which Rogers spoke to the standard of proximate causation for
FELA negligence claims.
¶22 	In assessing the impact of Rogers on the requirement
that a FELA negligence plaintiff prove “proximate cause,” it is
important to be clear about the meaning of the term. 	Proximate
cause is perhaps the consummate legal term of art. 	It may hold
the dubious honor of having generated more confusion than any
other term in the legal lexicon. 15 	In its most common usage, the
term “proximate cause” is equivalent to “legal cause” and is

16 See id. (equating proximate and legal cause).
17 See Dowell Div. of Dow Chem. v. Del-Rio Drilling
Programs, 761 P.2d 1380, 1384 (Utah 1988) (“‘Proximate cause is a
legal construct calling for a legal conclusion based on various
factors in addition to an actual cause-effect relationship. 	It
is common place in the law that an act, omission, or force may be
an actual cause, but not a proximate cause.’” (quoting Bennion v.
LeGrand Johnson Constr. Co., 701 P.2d 1078, 1083 (Utah 1985)));
see also Adas v. Ames Color-File, 407 N.W.2d 640, 642 (Mich. Ct.
App. 1987) (“Cause in fact, or ‘but for’ causation, means that if
the harmful result would not have come about but for the
negligent conduct, then there is a direct causal connection
between the negligence and the injury. . . . 	By contrast, legal
or proximate causation involves a determination that the nexus
between the wrongful acts (or omissions) and the injury sustained
is of such a nature that it is socially and economically
desirable to hold the wrongdoer liable. 	In this sense, proximate
causation, and hence liability, hinges on principles of
responsibility, not physics. 	Thus, proximate causation is a
determination that must be made in addition to a determination of
cause in fact or ‘but for’ causation.” (internal quotations marks
omitted)).
18 Today, some jurisdictions use “proximate cause” as an
umbrella term that encompasses both “but for” and “legal cause.”
See, e.g., City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d
1099, 1127 (Ill. 2004) (“The term ‘proximate cause’ encompasses
two distinct requirements: 	cause in fact and legal cause.”).
9 	Nos. 20080151, 20080184
usually juxtaposed against the term “cause in fact.” 16 	While the
“cause in fact” inquiry asks only whether a defendant’s
negligence, as a factual matter, played a role in bringing about
the plaintiff’s injury, the “legal cause” inquiry focuses on the
question of whether liability should attach to a particular cause
in fact. 17
¶23 	For a particular negligent act to be the legal cause of
a plaintiff’s injuries, there must be some greater level of
connection between the act and the injury than mere “but for”
causation. 	For our analysis in this case, we use the term
“proximate cause” in its traditional sense, that is,
interchangeably with “legal cause.” 18 	Thus, when we assess
Rogers’s impact on the requirement of “proximate cause,” we are
determining whether Rogers allows liability to attach in FELA
negligence cases merely upon a showing of “cause in fact” or
whether FELA negligence claims retain the general common law
requirement that the plaintiff also prove “legal cause.”

19 Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 502 (1957).
20 Id.
21 Id. at 502-03.
22 Id. at 503-04.
23 Id. at 510-11.
24 Id. at 504 (emphasis added).
Nos. 20080151, 20080184 	10
¶24 	Rogers involved a railroad employee’s negligence suit
against his employer for injuries resulting from a fall the
employee suffered while burning weeds on a railroad right of way.
The employee in Rogers was given a hand torch and instructed to
burn the weeds and vegetation growing within 2 to 3 feet of
either side of a set of railroad tracks. 19
¶25 	While the employee was burning vegetation along the
right of way, he heard the sound of an approaching train and
moved away from the tracks for safety. 	As the employee observed
the passing train, the train fanned the flames of the burning
vegetation, first enveloping the employee in smoke and then
bringing the fire close to his position. 	The employee covered
his face and retreated quickly to avoid the fire. 	As he
retreated, he fell from the top of a culvert and suffered serious
injuries. 20
¶26 	The employee sued the railroad for negligence under
FELA, arguing that the railroad was negligent in requiring him to
burn vegetation close to active tracks and in failing to properly
maintain the culvert. 21 	The employee obtained a jury verdict in
his favor at trial, which the Missouri Supreme Court reversed on
appeal. 22
¶27 	The United States Supreme Court reversed the Missouri
Supreme Court, reinstating the jury’s verdict. 23 	In so doing,
the United States Supreme Court reviewed the two separate grounds
upon which it believed the Missouri Supreme Court had rested its
holding. 	First, the United States Supreme Court reasoned that
the Missouri Supreme Court’s opinion rested on a finding that the
employee’s own “conduct was the sole cause of his [injuries].” 24
The United States Supreme Court disagreed, stating that the facts
raised “[a]t best, uncertainty” as to whether the employee’s own
actions were the sole proximate cause of his injuries, and that,

25 Id.
26 Id. at 505-06.
27 Id. at 506-07 (emphases added) (internal citations
omitted).
11 	Nos. 20080151, 20080184
given this uncertainty, the issue of causation was for the jury,
rather than the court, to determine. 25
¶28 	The United States Supreme Court also addressed what it
viewed as a possible alternative ground for the Missouri Supreme
Court’s decision--that the employee was contributorily negligent.
The United States Supreme Court rejected this ground as well,
stating that, under FELA, a court does not have to “find that the
defendant’s negligence was the sole, efficient, producing cause
of [the plaintiff’s] injury.” 26 	Instead, the United States
Supreme Court stated:
Under [FELA] 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. 	It does not matter that,
from the evidence, the jury may also with
reason, on grounds of probability, attribute
the result to other causes, including the
employee’s contributory negligence. 	Judicial
appraisal of the proofs to determine whether
a jury question is presented is narrowly
limited to the single inquiry whether, with
reason, the conclusion may be drawn that
negligence of the employer played any part at
all in the injury or death. 	Judges are to
fix their sights primarily to make that
appraisal and, if that test is met, are bound
to find that a case for the jury is made out
whether or not the evidence allows the jury a
choice of other probabilities. 27
¶29 	The above-quoted language from Rogers has spawned an
extensive debate over what the Supreme Court meant by the phrase
“played any part, even the slightest.” 	Each of the federal
courts of appeals to have specifically ruled on the issue has
held that Rogers eliminates the obligation of a FELA negligence

28 See, e.g., Richards v. Consol. Rail Corp., 330 F.3d 428,
434 (6th Cir. 2003) (“Under [the Rogers] standard, the role of
the jury is significantly greater in FELA cases than in common
law negligence actions. 	As this court has explained, Rogers
requires a plaintiff alleging a FELA violation to offer more than
a scintilla of evidence in order to create a jury question on the
issue of employer liability, but not much more.” (internal
citations and internal quotation marks omitted)); Summers v. Mo.
Pac. R.R. Sys., 132 F.3d 599, 606 (10th Cir. 1997) (“During the
first half of this century, it was customary for courts to
analyze liability under the FELA in terms of proximate causation.
However, the Supreme Court definitively abandoned this approach
in Rogers . . . .” (citations omitted)); Oglesby v. S. Pac.
Transp. Co., 6 F.3d 603, 609 (9th Cir. 1993) (“We hold that this
instruction properly expressed the requirement of causation under
the BIA and that it was not prejudicial error for the court to
refuse to instruct the jury that the BIA violation was the
proximate or direct cause of the injury. 	This holding is
consistent with the case law of several other circuits which have
found [that] ‘proximate cause’ is not required to establish
causation under the FELA.”); Nicholson v. Erie R.R. Co., 253 F.2d
939, 940 (2d Cir. 1958) (“It is true that, to impose liability on
the defendant, the negligence need not be the proximate cause of
the injury. 	The F.E.L.A. has its own rule of causation. 	The
injury need only be one resulting in whole or in part from the
negligence.” (internal quotation marks omitted)).
29 Marazzato v. Burlington N. R.R. Co., 817 P.2d 672, 674-75
(Mont. 1991) (“Under FELA, the test of whether a case should go
to a jury is simply whether the evidence justifies with reason
the conclusion that employer negligence played any part, even the
slightest, in producing the injury or death for which damages are
sought. 	[Plaintiff] cites Rogers for the proposition that FELA
is liberally construed to require only a slight amount of
foreseeability to get a FELA case to a jury. 	The Rogers Court
went on to say ‘[i]t does not matter that, from the evidence, the
jury may also with reason, on grounds of probability, attribute
the result to other causes, including the employee’s contributory
negligence.’ 	It is obvious from this statement that the Rogers
case was addressing the issues of multiple causes and
contributory negligence after it had been established that the
employer was negligent. 	The plaintiff has the burden of proving
that defendant’s negligence was the proximate cause in whole or
in part of plaintiff’s [injury]. 	Reasonable foreseeability of
(continued...)
Nos. 20080151, 20080184 	12
plaintiff to prove proximate cause. 28 	Some state supreme courts
have come to the opposite conclusion. 29

29 (...continued)
harm is an essential ingredient of FELA negligence.” (first
alteration in original) (citations omitted)); see, e.g., Chapman
v. Union Pac. R.R., 467 N.W.2d 388, 395 (Neb. 1991) (“To recover
under the Federal Employers’ Liability Act, an employee must
prove the employer’s negligence and that the alleged negligence
is a proximate cause of the employee’s injury.”).
30 Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994)
(“We have liberally construed FELA to further Congress’ remedial
goal. 	For example, we held in Rogers v. Missouri Pacific
Railroad Co. that a relaxed standard of causation applies under
FELA.” (citation omitted)).
31 549 U.S. 158 (2007).
32 Id. at 164-65.
33 Id. at 174 (Souter, J., concurring) (“FELA said nothing
. . . about the familiar proximate cause standard for claims
either of a defendant-employer’s negligence or a plaintiff-
employee’s contributory negligence, and throughout the half-
century between FELA’s enactment and the decision in Rogers, we
consistently recognized and applied proximate cause as the proper
standard in FELA suits.”).
34 Id. at 179-80 (Ginsburg, J., concurring) (“With the
motivation for FELA center stage in Rogers, we held that a FELA
plaintiff can get to a jury if he can show that his employer’s
negligence was even the slightest cause of his injury. 	The
(continued...)
13 	Nos. 20080151, 20080184
¶30 	And, indeed, although the United States Supreme Court
itself has before cited Rogers for the proposition that “a
relaxed standard of causation applies under FELA,” 30 the Court’s
recent opinion in Norfolk Southern Railway Co. v. Sorrell 31
strongly indicates that the Court has never squarely addressed
the issue of Rogers’s impact on proximate cause.
¶31 	In Sorrell, the majority of the Court declined to
address the appropriate standard of causation required by FELA, 32
but the case spawned two concurring opinions expressing divergent
views regarding Rogers. 	Justice Souter took the position that
Rogers spoke only to contributory negligence and therefore left
in place the proximate cause requirement for FELA claims, 33 while
Justice Ginsburg argued that Rogers made clear that FELA claims
have a less exacting causation requirement. 34 	Thus, even among

34 (...continued)
‘slightest’ cause sounds far less exacting than ‘proximate’
cause, which may account for the statements in judicial opinions
that Rogers dispensed with proximate cause for FELA
actions. . . . 	If we take up Prosser and Keeton’s suggestion to
substitute ‘legal cause’ for ‘proximate cause,’ we can state more
clearly what Rogers held: 	Whenever a railroad’s negligence is
the slightest cause of the plaintiff’s injury, it is a legal
cause, for which the railroad is properly held responsible.”
(citation and internal quotation marks omitted)).
35 Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599, 606 (10th
Cir. 1997) (“During the first half of this century, it was
customary for courts to analyze liability under the FELA in terms
of proximate causation. 	However, the Supreme Court definitively
abandoned this approach in Rogers . . . .” (citations omitted));
see also cases cited in note 28, supra. 	As we have stated
before, our duty in FELA cases is to ascertain the construction
of FELA given by the United States Supreme Court and rule
accordingly. 	See Miller v. S. Pac. Co., 21 P.2d 865, 872-73
(Utah 1933) (“This case is brought under the provisions of the
Federal Employers’ Liability 	Act . . . and the meaning and
application of the act as interpreted by the Supreme Court of the
United States is final and controlling as to that matter. 	It is
the duty of this court to ascertain the construction which that
court has given the act and rule accordingly.” (citation
omitted)). 	We are not bound by how the courts of appeals,
including the Tenth Circuit, have construed the statute.
Nos. 20080151, 20080184 	14
the members of the Supreme Court, it appears that there is no
definitive view of Rogers’s impact.
¶32 	It is clear from the Supreme Court’s statements and the
context of the case that Rogers at least holds that a FELA
plaintiff’s contributory negligence does not bar his or her case
from proceeding to a jury. 	The question presented in this case
is whether Rogers goes further and also holds that FELA’s
causation requirement is satisfied merely upon a showing of “but
for” causation. 	We conclude that it does not. 	While other
courts, including the Court of Appeals for the Tenth Circuit,
have stated that Rogers “definitively abandoned” the requirement
that a FELA plaintiff show proximate cause, 35 such an
interpretation is not supported by FELA’s plain language, not
mandated by the Supreme Court’s statement in Rogers, and
inconsistent with the Supreme Court’s general interpretive
approach to FELA.

36 45 U.S.C. § 53 (2006) (“[T]he fact that the employee may
have been guilty of contributory negligence shall not bar a
recovery, but the damages shall be diminished by the jury in
proportion to the amount of negligence attributable to such
employee . . . .”).
37 Id. § 51.
38 Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506 (1957)
(emphasis added).
15 	Nos. 20080151, 20080184
¶33 	While one could certainly read the Supreme Court’s
language in Rogers to speak to the standard of causation under
FELA, this is not the best reading of the case. 	Given the facts
in Rogers, which clearly implicate the issue of contributory
negligence, the better reading is that the Court’s language in
Rogers spoke only to the impermissibility of barring a FELA
plaintiff’s claim based on the plaintiff’s own contributory
negligence.
¶34 	In addition, viewing Rogers as a contributory
negligence case is more consistent with FELA’s statutory
language. 	FELA expressly bars contributory negligence as a
defense to employee negligence claims, 36 and, in regards to the
standard for liability says only that “[e]very common carrier by
railroad . . . shall be liable in damages to any person suffering
injury while he is employed by such carrier in such commerce
. . . for such injury or death resulting in whole or in part from
the negligence of any of the officers, agents, or employees of
such carrier.” 37 	Thus, while there is a clear basis in the
statutory text to support Rogers’s rule regarding contributory
negligence, there is no similar statutory support for reading
Rogers as eliminating the requirement of proximate causation.
¶35 	And even if one viewed the Supreme Court’s language in
Rogers as setting out the standard for causation in FELA claims,
the language itself does not establish that FELA eliminated the
requirement of proving proximate cause. 	The Supreme Court did
not say, in Rogers, that a FELA case must go to the jury any time
the railroad’s negligence played the slightest part in producing
the plaintiff’s injury. 	The exact statement made by the Supreme
Court was that “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.” 38 	The inclusion
of the phrase “justify with reason” suggests that some assessment
of responsibility--beyond only a simple connecting chain of “but
for” causation--is required before a FELA plaintiff is entitled

39 See W. Page Keeton, et al., Prosser and Keeton on Torts
§ 41, at 264 (5th ed. 1984) (“‘Proximate cause’--in itself an
unfortunate term--is merely the limitation which the courts have
placed upon the actor’s responsibility for the consequences of
the actor’s conduct. 	In a philosophical sense, the consequences
of an act go forward to eternity, and the causes of an event go
back to the dawn of human events, and beyond. 	But any attempt to
impose responsibility upon such a basis would result in infinite
liability for all wrongful acts, and would ‘set society on edge
and fill the courts with endless litigation.’ 	As a practical
matter, legal responsibility must be limited to those causes
which are so closely connected with the result and of such
significance that the law is justified in imposing liability.
Some boundary must be set to liability for the consequences of
any act, upon the basis of some social idea of justice or
policy.” (citation omitted)).
40 Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 165-66
(2007).
41 See, e.g., Stewart v. Federated Dep’t Stores, 662 A.2d
753, 758 (Conn. 1995); Stahl v. Metro. Dade County, 438 So. 2d
14, 17-20 (Fla. 3d Dist. Ct. App. 1983); Kent v. Commonwealth,
771 N.E.2d 770, 777 (Mass. 2002); Transp. Indem. Co. v. Page, 406
P.2d 980, 985 (Okla. 1963).
Nos. 20080151, 20080184 	16
to have his claim decided by a jury. 	And assessment of legal
responsibility for a cause in fact of an injury is the raison
d’etre of the proximate cause requirement. 39
¶36 	At most, the Supreme Court’s language in Rogers can be
characterized as ambiguous as to whether it addressed proximate
cause or only contributory negligence. 	In light of this
ambiguity, the appropriate reading of Rogers is the one most
consistent with the Supreme Court’s announced interpretive
approach to FELA. 	As set forth above, the Supreme Court has
stated that “[a]bsent express language to the contrary, the
elements of a FELA claim are determined by reference to the
common law.” 40 	While “the common law” is anything but
monolithic, there are some principles that are universal, and the
requirement that a negligence plaintiff show proximate cause--in
the sense of a legally sufficient connection beyond simple cause
in fact--is part of the common law of torts in all
jurisdictions. 41
¶37 	Because there is nothing in the text of FELA that
expressly alters the standard common law requirement that a
negligence plaintiff prove proximate cause, reading Rogers’s

42 Sorrell, 549 U.S. at 174 (Souter, J., concurring)
(stating that “Rogers left [the law of proximate causation] where
it was.”).
43 320 U.S. 476, 483 (1943) (quoting Milwaukee & St. Paul
Ry. Co. v. Kellogg, 94 U.S. 469, 475 (1877)) (emphases added).
17 	Nos. 20080151, 20080184
ambiguous language as eliminating the proximate cause requirement
would be contrary to the Supreme Court’s approach to FELA. 	We
decline to assume, in light of the ambiguous language and another
more plausible and consistent interpretation, that the Supreme
Court violated its own interpretive rules in Rogers. 	Instead, we
conclude that the Supreme Court, in Rogers, spoke only to the
point that contributory negligence was unavailable as a defense
in FELA negligence actions.
¶38 	But this conclusion does not end our inquiry. 	Having
determined that the Supreme Court, in Rogers, did not speak to
the appropriate standard of proximate cause in FELA negligence
cases, we must now determine the appropriate standard for
proximate causation under FELA and apply it to Raab’s case to
determine whether the district court’s decision to grant summary
judgment was correct.
B. 	The District Court Erred in Granting Summary Judgment to Utah
Railway Because a Reasonable Jury Could Conclude That Raab’s
Injuries Were a Natural and Probable Consequence of the Alleged
Failure of the Dynamic Brake
¶39 	Since Rogers did not speak to the issue of proximate
cause, it left the FELA standard for proximate causation where it
found it. 42 	Prior to Rogers, the United States Supreme Court had
held that foreseeability was the touchstone of proximate cause.
In Brady v. Southern Railway Co., the Court, in a FELA decision,
stated that “‘in order to warrant a finding that negligence . . .
is the proximate cause of an injury, it must appear that the
injury was the natural and probable consequence of the negligence
or wrongful act, and that it ought to have been foreseen in the
light of the attending circumstances.’” 43
¶40 	In Davis v. Wolfe, the Supreme Court, after discussing
a number of its prior FELA decisions, wrote as follows regarding
the standard for causation under FELA:
The rule clearly deducible . . . is that, on
the one hand, an employee cannot recover
. . . if the failure to comply . . . is not a
proximate cause of the accident which results

44 263 U.S. 239, 243 (1923) (emphasis added).
Nos. 20080151, 20080184 	18
in his injury, but merely creates an
incidental condition or situation in which
the accident, otherwise caused, results in
such injury; and, on the other hand, he can
recover if the failure to comply with the
requirements of the act is a proximate cause
of the accident, resulting in injury to him
while in the discharge of his duty, although
not engaged in an operation in which the
safety appliances are specifically designed
to furnish him protection. 44
¶41 	Under Brady, the rule of proximate cause under FELA is
that an employee who is injured as a result of his employer’s
negligence can recover so long as his or her injury was the
natural and probable consequence of the employer’s negligence.
Davis makes clear that in cases where the employer’s negligence
was not the direct cause of the employee’s injury, the negligence
is nonetheless a proximate cause of the injury if the injury
occurred while the employee was discharging the duty that
devolved on him or her by reason of the employer’s negligence.
Therefore, reading Brady and Davis together, when an employer’s
negligence creates a situation to which the employee must
respond, and the employee is injured while performing his or her
duties in response to the situation brought about by the
employer’s negligence, the employee’s injury is the “natural and
probable consequence” of the negligence, and the negligence is
therefore deemed to be the injury’s proximate cause.
¶42 	Here, the undisputed facts demonstrate that Raab was
injured when, as a result of the malfunctioning dynamic brake, he
was required to assist the engineer in resetting the locomotive
controls after reforming the front consist. 	Applying the
proximate cause standard from Davis and Brady, a reasonable jury
could conclude that Raab’s injury was the natural and probable
consequence of Utah Railway’s alleged negligence. 	The material
facts show that the failure of the locomotive’s dynamic brake
created a condition to which Raab, in the discharge of his duties
as an employee, was required to respond. 	While still in the
course of responding to this condition, Raab sustained his
injuries. 	Because a reasonable jury could conclude, based on
these facts, that the failure of the dynamic brake was a
proximate cause of Raab’s injuries, it was inappropriate for the
district court to grant Utah Railway summary judgment on Raab’s
FELA claim.

45 49 U.S.C. § 20701 (2006).
46 See Urie v. Thompson, 337 U.S. 163, 188-89 (1949).
19 	Nos. 20080151, 20080184
II. 	SUMMARY JUDGMENT WAS ALSO INAPPROPRIATE ON RAAB’S FLIA CLAIM
BECAUSE A REASONABLE JURY COULD CONCLUDE, BASED ON THE UNDISPUTED
MATERIAL FACTS, THAT THE PLACEMENT OF THE AIR CONDITIONER
RENDERED THE 6000 SERIES LOCOMOTIVE UNREASONABLY DANGEROUS AND
WAS THE PROXIMATE CAUSE OF RAAB’S INJURIES
¶43 	FLIA is a safety statute governing the use of
locomotives in interstate commerce and provides that a railroad
may use a locomotive on its line “only when the locomotive . . .
and its parts and appurtenances . . . are in proper condition and
safe to operate without unnecessary danger of personal injury.” 45
Although FLIA does not create a separate cause of action for
violations of its provisions, violations of FLIA are deemed
negligent per se and are therefore actionable under FELA. 46
¶44 	Although its minute entry is not entirely clear, it
appears that the district court rested its decision to grant
summary judgment in favor of Utah Railway on Raab’s FLIA claim on
two separate grounds. 	First, the district court found that Utah
Railway was entitled to summary judgment on the ground that the
placement of the overhead air conditioning unit, whether
negligent or not, did not violate FLIA as a matter of law because
the air conditioning unit was functioning as intended. 	Second,
the district court stated that the undisputed facts made clear
that Raab’s injuries resulted from “non-attention incident to
operation,” which we take to mean that the district court
determined, as a matter of law, that the placement of the air
conditioning unit was not the proximate cause of Raab’s injuries.
Because we conclude that a reasonable jury could find, based on
the undisputed material facts evident in the record, that the
placement of the air conditioning unit both (A) rendered the
locomotive unnecessarily dangerous in violation of FLIA and (B)
was a proximate cause of Raab’s injuries, we reverse the district
court.
A. 	A Reasonable Jury Could Conclude That the Placement of the
Air Conditioning Unit Violated FLIA
¶45 	At trial, Utah Railway argued that it was entitled to
summary judgment on Raab’s FLIA claim because the air
conditioning unit, regardless of its location, was functioning
correctly. 	Utah Railway’s argument was based on its assertion
that FLIA is violated only when a locomotive part or appurtenance
is not functioning as intended. 	The district court’s decision to

47 See, e.g., Delevie v. Reading Co., 176 F.2d 496, 496-98
(3d Cir. 1949) (holding that the dangerous placement of a
functioning reverse gear mechanism could support a jury verdict
for a railroad employee under the Boiler Inspection Act, a
predecessor statute to FLIA).
48 49 U.S.C. § 20701(1) (2009) (emphasis added).
49 Webster’s Third New International Dictionary 2504 (1986).
Nos. 20080151, 20080184 	20
grant summary judgment for Utah Railway on the ground that the
placement of the air conditioning unit did not violate FLIA as a
matter of law appears to have been based on Utah Railway’s
assertion.
¶46 	On appeal, Utah Railway takes a different tack. 	It now
apparently concedes that the negligent location of a functional
locomotive part or appurtenance can create an “unnecessary danger
of personal injury” in violation of FLIA. 47 	Nevertheless, Utah
Railway asks us to affirm the district court’s decision on a
different ground: 	that the placement of the air conditioning
unit did not violate FLIA because it was possible for a person
using reasonable care to enter the 6000 series locomotive cab
without sustaining injury from the air conditioning unit.
According to Utah Railway, the “unnecessary danger” provision of
FLIA is violated only when “a worker exercising due care could
not have interfaced with or used the subject locomotive part or
appurtenance without an unnecessary risk of injury.”
¶47 	Utah Railway’s proposed rule is based on its own
synthesis of case law and is divorced from FLIA’s actual
language. 	According to the plain text of the statute, FLIA is
violated whenever a railroad allows a locomotive to run on its
railway when the locomotive is not both “in proper condition” and
“safe to operate without unnecessary danger of personal
injury.” 48 	Utah Railway’s proposed test for a FLIA violation
would equate the phrase “unnecessary danger” with the phrase
“danger that could not be avoided with the use of reasonable
care.” 	But this interpretation does not comport with the
ordinary meaning of the term “unnecessary.”
¶48 	Webster’s Dictionary defines “unnecessary” as “useless,
needless.” 49 	This definition implies that when determining
whether something is unnecessary, the focus should be on whether
it is needed, not whether it could be avoided. 	A locomotive
could be unnecessarily (i.e., needlessly) dangerous even if any
danger it posed could generally be avoided with the exercise of
due care.

50 See Gregory v. Mo. Pac. R.R. Co., 32 F.3d 160, 162 n.6
(5th Cir. 1994) (collecting cases holding that the issue of
whether a particular condition is unnecessarily dangerous under
railroad safety statutes is a question of fact for the jury).
51 The “Hand Formula” refers to Judge Learned Hand’s
algebraic formulation of this concept in United States v. Carroll
Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (“[T]he owner’s
duty, as in other similar situations, to provide against
resulting injuries is a function of three variables: 	(1) The
probability [of an event occurring]; (2) the gravity of the
resulting injury, if [it] does; (3) the burden of adequate
precautions. 	Possibly it serves to bring this notion into relief
to state it in algebraic terms: 	if the probability be called P;
the injury, L; and the burden, B; liability depends upon whether
B is less than L multiplied by P: 	i.e., whether B is less than
PL.”).
52 See White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994)
(“We also note that summary judgment is generally inappropriate
to resolve negligence claims and should be employed only in the
(continued...)
21 	Nos. 20080151, 20080184
¶49 	For example, a locomotive may have been designed with
an exposed electrical connection located in an out-of-the-way
place. 	It may be likely that railroad workers exercising due
care would avoid contact with the exposed wires. 	Nevertheless,
the existence of the exposed wires may pose an unnecessary danger
of personal injury if the wires could have been easily covered
without significant added cost or if the exposed connection could
have been located in a safer place. 	Conversely, the risk of
personal injury from the exposed connection may be necessary if
practical considerations, such as functionality requirements,
justified leaving the connection exposed.
¶50 	Therefore, whether a particular risk of injury is
“unnecessary” does not depend on whether an ordinarily careful
person could avoid it but on whether there is a competing concern
that justifies the existence of the risk. 	This is not typically
a question that can be resolved on summary judgment. 	It is a
classic question of fact; 50 it is basic “Hand Formula” negligence
analysis, where the determination of duty depends on balancing
the burdens associated with taking a particular preventative
measure against the probability and magnitude of injury that
might occur absent the measure. 51 	This assessment can only be
taken away from the jury if reasonable minds could reach only one
conclusion based on the applicable material facts. 52 	And the

52 (...continued)
most clear-cut case. 	Ordinarily, whether a defendant has
breached the required standard of care is a question of fact for
the jury. 	Accordingly, summary judgment is inappropriate unless
the applicable standard of care is fixed by law, and reasonable
minds could reach but one conclusion as to the defendant’s
negligence under the circumstances.” (citations and internal
quotation marks omitted)).
53 See Orvis v. Johnson, 2008 UT 2, ¶ 10, 177 P.3d 600.
Nos. 20080151, 20080184 	22
heavy burden of proving the inevitability of this conclusion
rests with the moving party on summary judgment. 53
¶51 	Utah Railway has failed to carry its burden. 	The only
facts that Utah Railway has advanced in favor of its proposition
that the 6000 series locomotive was not unnecessarily dangerous
are: 	(1) the air conditioning unit was functioning as intended;
(2) Raab had previously entered the cabs of several 6000 series
locomotives without bumping his head; and (3) Raab had already
ducked below the 5 feet 11 inch clearance level under the air
conditioning unit when he entered the locomotive through the cab
door, which had a clearance of approximately 5 feet 6 inches.
Utah Railway has presented no evidence regarding whether the air
conditioning unit could have been feasibly located in a more safe
position in the locomotive or whether practical considerations
justified its location.
¶52 	Thus, while the evidence before us on Utah Railway’s
motion for summary judgment may well establish that it is
possible for an ordinarily careful person to enter the cab of the
6000 series locomotive safely, it simply does not speak to the
determinative question of whether the location of the air
conditioning unit created an unnecessary danger of personal
injury. 	Because, based on the undisputed material facts, a
reasonable jury could determine that the placement of the air
conditioning unit created an unnecessary danger of personal
injury, the district court erred by granting Utah Railway’s
motion for summary judgment on Raab’s FLIA claim on the ground
that the placement of the air conditioner did not violate FLIA as
a matter of law.

54 See Green v. River Terminal Ry. Co., 763 F.2d 805, 810
(6th Cir. 1985).
23 	Nos. 20080151, 20080184
B. 	A Reasonable Jury Could Conclude, Based on the Undisputed
Material Facts Evident in the Record, That the Placement of the
Air Conditioning Unit Was the Proximate Cause of Raab’s Injuries
¶53 	In its minute entry granting Utah Railway summary
judgment on Raab’s FLIA claim, the district court stated that
“[t]he undisputed facts in this case establish that this is a
case of non-attention incident to operation.” 	We read this
statement to mean that the district court found that the
placement of the air conditioning unit was not the cause of
Raab’s injuries as a matter of law. 	The district court also
erred to the extent that it rested its ruling on this ground.
¶54 	As set forth above, the FELA causation standard applies
to Raab’s FLIA claim. 54 	Therefore, for us to affirm the district
court’s decision to grant summary judgment for Utah Railway based
on a lack of causation, we must conclude that no reasonable jury
could find, in view of the undisputed material facts, that the
placement of the air conditioning unit was a proximate cause of
Raab’s injuries. 	And, as set forth above, the burden rests with
Utah Railway, as the moving party on summary judgment, to prove
that no reasonable jury could decide otherwise. 	Again, Utah
Railway has failed to carry its burden.
¶55 	There is no doubt that the placement of the air
conditioning unit was a cause in fact of Raab’s injuries. 	Absent
the air conditioning unit being located where it was, Raab would
not have struck his head and suffered his injuries. 	And, under
the FELA causation standard set out above, the allegedly
negligent placement of the air conditioning unit could be a
proximate cause of Raab’s injuries if Raab’s injuries were a
natural and probable consequence of the air conditioning unit’s
location.
¶56 	We conclude that a reasonable jury could find, based on
the undisputed material facts evident in the record, that the
placement of the air conditioning unit was a proximate cause of
Raab’s injuries. 	A reasonable jury could determine that an
increased risk of collision with the ceiling is a natural and
probable consequence of reduced ceiling clearance in a confined
space like a locomotive cab. 	Therefore, we hold that the
district court also erred to the extent it justified, on the
alternative ground of causation, its decision to grant summary
judgment to Utah Railway on Raab’s FLIA claim.

Nos. 20080151, 20080184 	24
CONCLUSION
¶57 	Because a reasonable jury could conclude, based on the
undisputed material facts, that Utah Railway’s alleged negligence
both caused Raab’s injuries and constituted a violation of FLIA,
we reverse the district court’s decision to grant summary
judgment on Raab’s FELA and FLIA claims and remand to the
district court for proceedings consistent with this opinion.
---
¶58 	Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.