This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002)








Steven A. Olson,





The Burlington Northern and Santa Fe Railway Company,




Filed July 20, 2004

Affirmed in part, reversed in part, vacated in part, and remanded

Parker, Judge*



Hennepin County District Court

File No. 02-8021



Charles T. Hvass, Jr., Russell A. Ingebritson, Kathryn M. Kohn, Ingebritson & Associates, LLP, 100 South Fifth Street, Suite 450, Minneapolis, MN 55402 (for appellant)


Patrick J. Sweeney, JoAnn C. Toth, Spence, Ricke, Sweeney & Gernes, P.A., 600 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for respondent)


            Considered and decided by Peterson, Presiding Judge; Anderson, Judge; and Parker, Judge.

U N P U B L I S H E D  O P I N I O N




On appeal from summary judgment on his FELA claims, appellant contends the district court erred and applied the wrong standard for the statute of limitations, concluded that his neck and back injury claims were statutorily barred, and concluded that he failed to establish the element of duty necessary to his negligence claim for his lung injuries. Because the statute of limitations was properly applied and appellant’s neck and back injuries are statutorily barred, we affirm the district court’s order on these issues.  Because there are material fact issues as to respondent’s duty on appellant’s lung injury claim, we reverse and vacate the district court’s order on this issue.


1.         Statute of Limitations

Olson argues that the district court erred when it applied the statute of limitations under the Federal Employer’s Liability Act (FELA) 45 U.S.C. § 56.  The district court stated that the FELA “three year statute of limitations begins to run when Plaintiff knows or has reason to know of the existence or cause of the injury that is the basis of the claim.”  (Emphasis added.)  The three-year statute of limitations, however, begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury that is the basis of the claim.  U.S. v. Kubrick, 444 U.S. 111, 122, 100 S. Ct. 352, 359 (1979); Lecy v. Burlington N. Santa Fe Ry., Co., 663 N.W.2d 589, 592 (Minn. App. 2003) (emphasis added).

Even though the district court’s order incorrectly stated the FELA standard for the statute of limitations, the district court correctly considered both elements of the standard, finding that Olson both knew he had knee and back injuries and knew that the cause of his injuries was work related. 

2.         Knee and Back Injuries

Olson argues that the district court erred in granting summary judgment when it concluded the statute of limitations had expired because it was not until 2001 that Olson’s injuries were permanent, thus triggering the running of the statute of limitations.  Summary judgment is properly granted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.”  Minn. R. Civ. P. 56.03.  On appeal from a summary judgment, this court determines whether there are genuine issues of material fact and whether the district court erred as a matter of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The evidence is viewed in the light most favorable to the party against whom the motion was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Olson argues that there is a question of fact as to when he knew he had permanentknee and back injuries and when he knew or had reason to know that his knee and back injuries were work related.

a.         Knowledge of Injuries

Where the evidence raises different inferences as to when a plaintiff knew or should have known of his injury and its cause there are questions of fact for a jury to determine.  Rogers v. Illinois Cent. R.R., 833 S.W.2d 426, 428 (Mo. Ct. App. 1992).  Here, the record shows that: (1) Olson was diagnosed with arthritis in both knees by 1978, (2) by 1988, Olson complained his back ached all the time, (3) a 1988 CT scan showed degenerative changes in his back, and (4) a 1995 spinal x-ray showed evidence of further degenerative back disease.  Thus, the factual evidence does not raise different inferences as to when Olson knew he had knee and back injuries and shows that his injuries were permanent by at least 1995.

b.         Cause of Injuries

To establish the date on which the causal connection between his injuries and work was established, Olson relies on his medical records for dates when such a connection was noted in diagnosis.  But a medical diagnosis is not an exclusive prerequisite to the commencement of the limitations period.  Fletcher v. Union Pac. R.R. Co., 621 F.2d 902, 904-05 (8th Cir. 1980), cert. denied, 449 U.S. 1110 (1981).  The period may, and often does, begin to run before any diagnosis.  Fries v. Chicago & Northwestern Transp. Co., 909 F.2d 1092, 1096 (7th Cir. 1990).

Olson stated in his April 2, 2003, deposition that at least by 1995, he had told his doctor and a coworker that his employment with respondent was the cause of his knee and back injuries.  Olson’s deposition testimony, independent of a medical diagnosis confirming his knowledge, is sufficient to show when he had knowledge of his injuries and when he knew his injuries were caused by work.

Olson knew about his knee and back injuries, knew that his knee and back injuries were work-related by 1995, and the statute of limitations had already run for both the knee and back injury claims when he filed his claims on March 9, 2001.  Thus, there are no genuine issues of material fact.  The district court did not err in concluding that Olson’s knee and back injury claims were time-barred by the statute of limitations.

Olson argues in the alternative that even if he knew of his injuries and knew that his injuries were work-related, his claims for damages from any “aggravations” of those injuries fall within the FELA statute of limitations and thus are not time-barred.  In support of his argument, Olson relies on Fonseco v. Consol. Rail Corp., 246 F.3d 585, 588-89 (6th Cir. 2001) (citing Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018 (1949), and Aparicio v. Norfolk & W. Ry. Co., 84 F.3d 803 (6th Cir. 1996), abrogated on other grounds, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000)).  But Olson’s reliance is misplaced because

[a]n aggravation of an original injury that is claimed to have been caused by an employer’s negligence is not a severable action under the FELA. . . . [T]he fact that an injury “has not reached its maximum severity . . . but continues to progress” does not relieve the plaintiff of the duty to use reasonable diligence to discover the original injury and its cause.  Any “aggravation” of the original negligently caused injury would only affect the plaintiff’s damages, and would not require a separate determination of liability or causation.  Furthermore, a rule permitting severability of a claim that an original, continuing injury has been aggravated would contravene the purpose of the discovery rule . . . requiring Federal Employer’s Liability Act plaintiffs to use reasonable diligence to discover the cause of an injury once the injury manifests itself.


Aparicio, 84 F.3dat 815.

Olson’s injuries, diagnosed as arthritis in both knees and degenerative back disease, cannot be characterized as new injuries, but rather aggravations.  Aggravations of injuries that have not reached maximum severity are not severable for the purposes of the FELA statute of limitations, thus, any aggravation of Olson’s injuries are also time-barred.

3.         Negligence Claim for Lung Injuries

Olson argues that the district court erred in granting summary judgment when it ruled that he failed to establish the element of duty necessary to his negligence claim for his lung injuries.  “A railroad has a duty to provide its employees with a reasonably safe workplace.”  Lecy v. Burlington N. & Santa Fe Ry., Co., 663 N.W.2d 589, 592 (Minn. App.  2003) (citing Ackley v. Chicago & Northwestern Transp. Co., 820 F.2d 263, 267 (8th Cir. 1987).  The test for whether Olson presented sufficient evidence is

[w]hether 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. . . . 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. . . . [I]f that test is met, [judges] are bound to find that a case for the jury is made.


Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506-07, 77 S. Ct. 443, 448-49 (1957).  In considering whether a plaintiff has made a sufficient case under FELA, questions should be left to the jury to the maximum extent possible.  Id. at 504, 77 S. Ct. 447.  Only “slight or minimal” evidence is necessary to create a jury question on the issue of negligence in a FELA case.  Mendoza v. S. Pac. Transp. Co., 733 F.2d 631, 632 (9th Cir. 1984).

Olson contends that summary judgment was inappropriate for two reasons.  First, Olson argues that respondents did not move for summary judgment on Olson’s claim for lung injuries related to industrial bronchitis, but rather for lung injuries related to “asbestosis.”  Thus, Olson asserts the district court’s order did not include summary judgment on his lung injury claim.  However, Olson’s complaint alleges that he suffers from injuries to his lung from “daily exposures to repetitive stress and rock dust,” but does not allege what specific medical condition is related to his injuries.  The district court’s order granting summary judgment was based on its conclusion that Olson failed to establish the element of duty necessary to his negligence claim for his lung injury and was included in the summary judgment order regardless of the theory as to what specific medical condition is related to his injuries.

Second, Olson argues that there are expert affidavits in the record, along with other evidence, to prove the essential elements of negligence.  In a FELA negligence case, the employee must prove all the essential elements of negligence including duty, breach, causation and damages.  Davis v. Burlington N., Inc., 541 F.2d 182, 185 (8th Circ. (1976), cert. denied, 429 U.S. 1002, 97 S. Ct. 533 (1976).  Here, the district court addressed only the element of duty in its memorandum of law and concluded that Olson failed to show how respondent had a legal duty under FELA because the claim was not foreseeable.  A defendant’s duty is measured by what a reasonably prudent person would anticipate as resulting from a particular condition and what is reasonably foreseeable under like circumstances in the light of the facts then known, and that should or could reasonably have been anticipated.  Gallic v. Baltimore Ohio R.R. Co., 372 U.S. 108, 118, 83 S. Ct. 659, 665-66 (1963).  The record shows Olson’s testimony that respondent held safety courses regarding exposure to rock dust, testimony that he was exposed to rock dust, and an affidavit from Dr. Bonham stating:

Olson’s primary lung problem is caused by chronic industrial bronchitis.  The cause of chronic industrial bronchitis for Mr. Olson—exposure to rock dust—has been a known hazard to the medical community for decades . . . [and] it is my opinion that any worker exposed to rock dust, as described to me by Mr. Olson, should have been provided filtration devices that would have prevented the rock dust from getting into his lungs.


Dr. Bonham’s affidavit, along with Olson’s testimony, meets the Mendoza “slight or minimal” evidencetest to create a fact question as to respondent’s duty.

            Because the district court granted summary judgment as to the negligence claim for Olson’s lung condition based erroneously on its conclusion that no issues of material fact existed as to duty only and did not provide any further findings or conclusions under the other elements of negligence in support of its order for summary judgment, we vacate the district court order granting summary judgment as to the negligence claim and reverse and remand for further consideration of Olson’s lung condition claim.

            Respondent filed a notice of review regarding costs and disbursements, but failed to brief it.  Issues not briefed are waived.  McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 199), review denied (Minn. Sept. 28, 1990).  Thus, respondent’s issues are waived.

Affirmed in part, reversed in part, vacated in part, and remanded.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.