Railroad Legal Issues and Resources (2015)

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88 Air Quality Management District had a rule that required idling trains to limit the amount of emissions they release to reduce air pollution. In Association of American Railroads v. South Coast Air Quality Management District,394 the Ninth Circuit held that federal law preempted the local regulations.395 XXI. FEDERAL EMPLOYERS’ LIABILITY ACT 521 A. Introduction 521 In 1908, Congress enacted the Federal Employers’ Liability Act (FELA) to ensure that railroad employees who were injured in the course of their employment would be able to recover damages for their injuries.396 Sections B through D discuss some of FELA’s provisions, whether other federal statutes preclude claims under FELA, and some of the principles generally applicable in FELA cases. Sections E through F address claims under FELA for intentional emotional distress and for industrial or occupational diseases and poisoning. Section G covers claims under FELA for violations of the Federal Safety Appliance Act (FSAA). Sections H through M summarize articles on FELA and causation, the effect of counterclaims by railroads in FELA cases, recovery under FELA for a fear of developing cancer because of job-related exposure to toxins, and whether FELA should be repealed. B. Liability of Railroads for Negligent Injuries to Employees 522 Statute 522 Section 51 of FELA provides that a common carrier engaged in interstate commerce is liable for damages to any employee who suffers an injury while engaged in interstate commerce or when the employee dies because of a common carrier’s negligence.397 Cases 524 1. Determining Who Is an Employee 524 In Kelley v. Southern Pacific Company,398 the Supreme Court held that a nonrailroad employee must demonstrate that a railroad company has a supervisory responsibility over a 394 622 F.3d 1094 (9th Cir. 2010). 395 Cherney, supra note 393. 396 45 U.S.C. § 51, et seq. (2014). 397 45 U.S.C. § 51 (2014) (“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”). 398 419 U.S. 318, 95 S. Ct. 472, 42 L. Ed. 2d 498 (1974).

89 nonrailroad employee before the nonrailroad employee may be “deemed pro hac vice [an] employee[] of the railroad” for the purpose of liability under FELA.399 2. Requirement of Physical Harm as Antecedent to Claim for 525 Emotional Distress In Consolidated Rail Corporation v. Gottshall,400 decided in 1953, the Supreme Court held that FELA requires an employee to have experienced a physical harm as an antecedent to a claim for emotional distress. 3. Inapplicability of FELA to a Claim for Wrongful Discharge 526 In Lewy v. Southern Pacific Transportation Company,401 the Ninth Circuit held that FELA only covers work-related or “on the job” injuries and does not apply to claims of wrongful discharge. 4. Inapplicability of FELA to Purely Intrastate Activities 528 In Felton v. Southeastern Pennsylvania Transportation Authority,402 the Third Circuit held that Congress had no intention of extending FELA coverage to employees of urban transportation systems such as subways. Cases 529 C. Whether Other Federal Laws May Preclude a Claim 529 Under FELA 1. FELA, the Federal Railroad Safety Act, and Preclusion of 529 Federal Claims In Cowden v. BNSF Railway Company,403 the plaintiff alleged that BNSF failed to provide reasonably safe working conditions. The Eighth Circuit reversed and remanded the case because the district court failed to consider “whether an FRSA regulation ‘substantially subsumes’ the negligence claim.”404 399 Id., 419 U.S. at 330, 95 S. Ct. at 479, 42 L. Ed. 2d 498. 400 512 U.S. 532, 557, 114 S. Ct. 2396, 2411, 129 L. Ed. 2d 427 (1994). 401 799 F.2d 1281, 1289 (9th Cir. 1986). 402 952 F.2d 59, 66 (3d Cir. 1991). 403 690 F.3d 884 (8th Cir. 2012). 404 Id. at 895.

90 2. FELA, the Locomotive Inspection Act, and Federal Preclusion 530 A California federal district court in Glow v. Union Railroad Co.405 held that a FELA claim is not precluded when a railroad has complied with the Locomotive Inspection Act. Cases 531 D. Principles that Generally Apply in FELA Cases 531 1. Determining Whether Employees Are Engaged in Interstate 531 Commerce Under FELA In Geraty v. Northeast Illinois Regional Commuter Railroad Corporation,406 a patrol officer for the Northeast Illinois Regional Commuter Railroad Corporation (Metra) filed a FELA claim against Metra for a slip-and-fall injury that the plaintiff sustained on railroad property while she was working. A federal district court in Illinois denied Metra’s motion for summary judgment because the plaintiff’s duties were in furtherance of interstate commerce.407 2. Permissibility of Counterclaims by Railroads in 532 FELA Claims In Cavanaugh v. Western Maryland Railway Co.,408 the Fourth Circuit ruled that because Congress failed to preclude the assertion of counterclaims by railroads, counterclaims by railroads are allowable in FELA cases. 3. Whether a Plaintiff Must Prove Proximate Cause in a 532 FELA Action Although in CSX Transportation v. McBride409 CSX argued that McBride had to prove proximate cause, the Supreme Court held that juries should be instructed to find liability whenever a “railroad’s negligence played any part in bringing about the injury.”410 405 652 F. Supp. 2d 1135, 1141 (E.D. Cal. 2009). 406 2009 U.S. Dist. LEXIS 20573, at *1 (N.D. Ill. 2009). 407 Id. at *20, 21. 408 729 F.2d 289, 291 (4th Cir. 1984). 409 131 S. Ct. 2630, 180 L. Ed. 2d 637 (2011). 410 Id., 131 S. Ct. at 2634, 180 L. Ed. 2d at 643.

91 4. Low Standard for Evidence Required in FELA Cases 533 In Rivera v. Union Pac. R.R. Co.,411 the Fifth Circuit held that there is a very low standard for the evidence that a plaintiff needs to prove a FELA claim. 5. The Use of Comparative Negligence Rather than Contributory 534 Negligence in FELA Cases The doctrines of contributory negligence and assumption of the risk do not apply to cases brought under FELA;412 rather, as the Supreme Court held in Norfolk Southern Railway v. Sorrell,413 any contributory negligence of the employee is to be used to calculate any reduction in damages that otherwise would be owed to the employee. 6. FELA’s Preemption of Actions Under State Law 535 In 1917, in New York Central Rail Company v. Winfield,414 the Supreme Court held that FELA precluded an employee from claiming damages under state law because FELA was too comprehensive to allow additional options for recovery. 7. Whether Transit Authority Employee Assigned to Work on the 535 Long Island Railroad was Employee of an Entity Operating as a Common Carrier in Interstate Commerce Greene v. Long Island Railroad Company415 involved a FELA claim by a police officer employed by the New York Metropolitan Transit Authority (MTA) for an injury he suffered while patrolling the Long Island Railroad (LIRR). A federal district court in New York held that only “those employees of MTA who are engaged in the interstate common carrier operations of its commuter rails” are covered by FELA.416 411 378 F.3d 502 (5th Cir. 2004). 412 Toledo, St. L. & W. R. Co. v. Slavin, 236 U.S. 454, 35 S. Ct. 306, 59 L. Ed. 671 (1915); Central V. R. Co. v. White, 238 U.S. 507, 35 S. Ct. 865, 59 L. Ed. 1433 (1915). 413 549 U.S. 158, 160, 127 S. Ct. 799, 802, 166 L. Ed. 2d 638, 644 (2007). 414 244 U.S. 147, 148, 153–154, 37 S. Ct. 546, 548, 549, 61 L. Ed. 1045, 1048–49 (1917). 415 99 F. Supp. 2d 268 (E.D.N.Y. 2000), aff’d, 280 F.3d 224 (2d Cir. 2002). 416 Id. at 275.

92 8. The Effect of Medical Insurance on the Amount of an 537 Employee’s Recoverable Damages In Leighton v. CSX Transportation,417 the Kentucky Court of Appeals held that because the payments by the plaintiff’s health insurance plan were not a collateral source, the employee’s recovery had to be limited to out-of-pocket expenses. Cases 538 E. Whether a Claim of Infliction of Emotional Distress May Be 538 Made Under FELA 1. Whether the Zone of Danger Test Applies to a Claim Under FELA 538 for Intentional Infliction of Emotional Distress In Goodrich v. Long Island Rail Road Co.,418 the Second Circuit held that Goodrich did not have a claim for intentional infliction of emotional distress under FELA because the plaintiff failed to allege that he had sustained a “physical impact” or was placed in “immediate risk of physical harm” because of LIRR’s actions.419 2. Whether the Zone of Danger Test Applies to a Claim Under FELA 540 for Negligent Infliction of Emotional Distress In Conrail v. Gottshall,420 the Supreme Court held that although a claim for negligent infliction of emotional distress is actionable under FELA, the Court embraced the zone of danger test under the common law that is in harmony with FELA’s requirement of a physical injury. Cases 540 F. Claims Under FELA for Industrial or Occupational Diseases 540 and Poisoning 1. Recovery of Damages for a Fear of Developing Cancer 540 In CSX Transportation v. Hensley,421 the Supreme Court held that an employee may be able to recover under FELA for emotional distress for fear of developing cancer without 417 338 S.W.3d 818, 822 (Ky. Ct. App. 2011). 418 654 F.3d 190 (2d Cir. 2011). 419 Id. at 192. 420 512 U.S. 532, 569–70, 114 S. Ct. 2396, 2417, 129 L. Ed. 2d 427, 456 (1994). 421 556 U.S. 838, 129 S. Ct. 2139, 173 L. Ed. 2d 1184 (2009).

93 exhibiting physical manifestations as long as the individual is only seeking damages for asbestosis-related pain and suffering and the plaintiff’s fear of developing cancer is “genuine and serious.”422 2. Liability of a Railroad Under FELA for an Employee’s Exposure 541 to a Toxic Substance In Norfolk & Western Ry. v. Ayers,423 railroad employees sued Norfolk Southern under FELA because of their exposure to asbestos. The Supreme Court held that the employees could recover for mental anguish when they are able to prove that their fear of developing cancer is a genuine and serious one.424 3. Liability of a Railroad for Industrial or Occupational Disease 542 or Poisoning In Fraynert v. Delaware and Hudson Railway Co.,425 a Court of Common Pleas in Pennsylvania denied Delaware and Hudson Railway Co.’s motion for a summary judgment regarding five plaintiffs’ claims because it was not clear whether they “possessed sufficient critical facts to objectively discover their pulmonary harm and its cause more than three years before suit was commenced.”426 Cases 543 G. Violations of the Federal Safety Appliance Act and Claims 543 Under FELA 1. Liability for an Employee’s Injury Occurring When a Train 543 Was in Use In Woodard v. CSX Transportation, Inc.,427 involving a claim under the FSAA for which a violation constitutes negligence per se in a FELA suit, a federal district court in New York held that because the employee was injured while unloading the railcar when it was on a CSX track, the railcar was “in use” at the time of the injury. 422 Id., 556 U.S. at 841, 129 S. Ct. at 2141, 173 L. Ed. 2d at 1188. 423 538 U.S. 135, 123 S. Ct. 1210, 155 L. Ed. 2d 261 (2003). 424 Id., 538 U.S. at 141, 123 S. Ct. at 1215, 155 L. Ed. 2d at 271. 425 2013 Pa. Dist. & Cnty. Dec. LEXIS 299, at *1 (Pa. Ct. Com. Pl. 2013). 426 Id. at *1. 427 2012 U.S. Dist. LEXIS 16704, at *1, 3, 4 (N.D.N.Y. Feb. 10, 2012).

94 2. Liability of a Railroad Under FELA Based on a Violation of 544 the FSAA In Strickland v. Norfolk Southern Ry. Co.,428 the Eleventh Circuit held that a violation of the FSAA may be asserted under FELA. Articles 545 H. What a Plaintiff Must Prove Regarding Causation Under FELA 545 A recent law review article analyzes the Supreme Court’s decision in 1957 in Rogers v. Missouri Pacific Railroad Co.,429 in which the Court held that FELA requires only “that employer negligence played any part, even the slightest, in producing the injury.”430 I. The Extent of Causation Required in FELA Claims 547 After McBride In Causation Issues in FELA and Jones Act Cases in the Wake of McBride, the author argues that the element of proximate cause has not been removed completely from FELA cases because the courts commonly use reasoning that is based on proximate cause, even when declaring there is no proximate cause requirement.431 J. The Effect of Counterclaims by Railroads on FELA Claims 548 In Sidetracking the FELA: The Railroads’ Property Damage Claims, the author argues that FELA’s value is compromised by the increased instances in employees’ suits under FELA when railroads counterclaim for property damage.432 428 692 F.3d 1151, 1151–53 (11th Cir. 2012). 429 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957). 430 Michael D. Green, The Federal Employers’ Liability Act: Sense and Nonsense about Causation, 61 DEPAUL L. REV. 503, 504 (2012). 431 David W. Robertson, Causation Issues in FELA and Jones Act Cases in the Wake of McBride, 36 TUL. MAR. L. J. 397, 421 (2012) (citing Heath v. Matson Navigation Co., 333 F. Supp. 131, 135–36, 1972 AMC 1063, 1068–70 (D. Haw. 1971)). 432 William P. Murphy, Sidetracking the FELA: The Railroads’ Property Damage Claims, 69 MINN. L. REV. 349, 350 (1985).