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FELA cases: A refresher course

— by Jeremy K. Robinson

(Reprinted with permission from the Consumer Attorneys of San Diego, Trial Bar News)

Railroad employees have a unique relationship with their employer.  Instead of being covered by workers’ compensation (for which they usually are not eligible), railroad employees must look to the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51 et seq., for workplace injury compensation.  FELA makes every interstate railroad liable for workplace injuries if “such injury … result[ed] in whole or in part from the [railroad’s] negligence … 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.”  45 U.S.C. § 51.  So, unlike workers’ compensation, recovery under FELA requires some degree of employer fault.

Still, FELA is, for the most part, a very plaintiff-friendly statutory scheme.  Perhaps no one put it better than Justice Douglas, who said FELA was intended “to put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations.”  Wilkerson v. McCarthy (1949) 336 U.S. 53, 68 (concurring opinion).

FELA was passed in 1908 in an effort to provide a tort compensation system for railroad workers who, at that time, experienced among the highest accident rates in United States history.  Hines v. Consolidated Rail Corp. (3d Cir. 1991) 926 F.2d 262, 267.  “FELA is a broad remedial statute based on fault … and is intended by Congress to protect railroad employees by doing away with certain common law tort defenses.”  Villa v. Burlington Northern and Santa Fe (8th Cir.2005) 397 F.3d 1041, 1045.  Among other things, FELA imposes upon a railroad a continuing and nondelegable duty to use reasonable care to provide railroad employees safe tools and a safe place to work.  Bailey v. Central Vermont Ry. (1943) 319 U.S. 350, 352–353.  Both federal and state courts have concurrent jurisdiction in FELA cases, but substantive legal issues are governed by federal law regardless of the forum.  See, Chesapeake & Ohio R. Co. V. Stapleton (1929) 279 U.S. 587, 590.

One of the nice things about FELA, at least from the plaintiff’s perspective, is that the standard for summary judgment in a FELA case is slanted heavily in favor of denying the motion.  By enacting FELA, Congress desired to “secure jury determinations in a larger proportion of cases than would be true of ordinary common law actions.” Boeing Co. v. Shipman (5th Cir.1969) 411 F.2d 365, 371 (en banc).  Indeed, jury determinations were intended to be part of the FELA remedy. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines (1962) 369 U.S. 355, 360.

Because of this preference for jury trials, summary judgment can be granted only in extreme cases.  “[A] trial court is justified in withdrawing … issue[s] from the jury’s consideration only in those extremely rare instances where there is a zero probability either of employer negligence or that any such negligence contributed to the injury of an employee.”  Pehowic v. Erie Lackawanna R.R., (3d Cir. 1970) 430 F.2d 697, 699-700.

A word of caution, however: recent FELA decisions suggests courts are getting less hesitant about granting summary judgment.  A key point to remember is that, unlike workers’ compensation schemes, FELA is still a fault-based statute.  That means a FELA plaintiff must still prove negligence on the part of the employer, and a causal link between that negligence and the employee’s injuries.  Sinclair v. Long Island R.R. (2d. Cir. 1993) 985 F.2d 74, 77.  From my review, summary judgment in a FELA case appears most often to be based on a plaintiff’s inability to show that the employer had notice of a particular workplace hazard and failed to correct it.   See, e.g., Holbrook v. Norfolk Southern Railway Co. (7th Cir.2005) 414 F.3d 739, 742; Murphy v. Metropolitan Transp. Authority (S.D.N.Y. 2008) 548 F.Supp.2d 29, 39.

While proving negligence in a FELA case is still required, the standard for causation is significantly relaxed.  As the U.S. Supreme Court has recently reaffirmed, under FELA, the test for causation is “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.” CSX Transportation, Inc. v. McBride (2011) ___ U.S. ___, 131 S.Ct.2630, 2636 (emphasis added).  It doesn’t matter that the jury could also attribute the result “to other causes, including the employee’s contributory negligence.”  Rogers v. Missouri Pacific Railroad Co. (1957) 352 U.S.500, 506.   Instead, the court’s role “is narrowly limited to the single inquiry whether… [the] negligence of the employer played any part at all in the injury or death.”  Id.  If that test is met, courts “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.”  Id. at 506–07 (footnotes omitted).

This particularly lenient standard furthers “the basic congressional intention to leave to the fact-finding function of the jury the decision of the primary question raised in these cases—whether employer fault played any part in the employee’s mishap.” Rogers at 508–09 (footnotes omitted). “The decisions of this Court… teach that the Congress vested the power of decision in these actions exclusively in the jury in all but the infrequent cases where fair-minded jurors cannot honestly differ whether fault of the employer played any part in the employee’s injury.” Id. at 510 (footnotes omitted).

A few examples show just how far courts are willing to stretch the standard.  Lavender v. Kurn (1946) 327 U.S. 645 is a good start.  In that case, the railroad employee was killed in an incident where there were no eyewitnesses.  The plaintiffs contended the employee was killed when he was hit by a mail hook hanging off a rail car that was moving backwards.  Their only evidence was the position of the deceased’s body near the rail car and the cause of death – blunt trauma to the head from a rounded metal object.  Id. at 742.  The defendant argued the more likely scenario is that he was murdered; struck in the back of the head by a pipe or club.  Id.

Although the Supreme Court acknowledged there was “evidence tending to show that it was physically and mathematically impossible for the hook to strike [the decedent],” and there were “facts from which it might reasonably be inferred that [he] was murdered…,” the court nevertheless upheld a jury verdict adopting the plaintiffs’ version of events and finding the railroad liable.  Id. at 744.  The court rejected the defendant’s claim that the verdict necessarily involved “speculation and conjecture.”  “Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.” Lavender, 327 U.S. at 653.

Gallick v. Baltimore & Ohio R. Co., (1963) 372 U.S. 108 is another good case.  There, the injured plaintiff ultimately required amputation of his legs due to an infected insect bite he received while at work.  Id., at 109.  He contended the bite came from an insect in a fetid pool the railroad allowed to accumulate near its right-of-way.  Id.

The lone piece of evidence the plaintiff in Gallick had that the insect came from the rotting pool was the plaintiff’s testimony that he had seen similar types of insects in the pool. Id. at 113.  And none of the doctors who treated the plaintiff could explain the etiology of his amputation, although some of them said that it was secondary to an insect bite. Id. at 109-10.  Still, the U.S. Supreme Court reversed the appellate court’s determination that there was insufficient evidence of causation to warrant submission of the case to the jury.  Id., at 112.  The court held the circumstantial evidence produced by the plaintiff was sufficient to support a causal inference.  Id. at 117-22.

These cases, as well as others (see, e.g., Ulfik v. Metro-North Commuter Railroad Company (2d Cir. 1996) 77 F.3d 54 (railroad employee claimed he fell down a flight of stairs as a result of dizziness allegedly caused by his having inhaled paint and solvent fumes in the railroad tunnels a few days earlier); Tufariello v. Long Island R. Co. (2d Cir. 2006) 458 F.3d 80, 88 (summary judgment reversed for plaintiff claiming hearing loss from exposure to railroad horns even though plaintiff had no expert testimony on causation or objective proof of decibel level produced by horns), show that the test for causation is slight in a FELA.  But, of course, there does have to be some connection.

Finally, anyone taking on a FELA case should keep in mind that the available damages are different than what is available at common law.  This is particularly important in the wrongful death arena, because FELA does not allow for recovery of damages for the loss of companionship or society caused by the death.  Michigan Central Railroad Co. v. Vreeland (1913) 227 U.S. 59, 70.  See CACI 2942 for a complete list of damages available for wrongful death in a FELA case.