TORTS & RAILROAD (FELA) / Three selected FELA cases from this week.

Noted below are three cases reported this week that arose under the Federal Employers’ Liability Act (“FELA”):

1. Goldman v. Southeastern Pennsylvania Transp. Authority, 2012 6619228 (Supreme Court of Pennsylvania, December 17, 2012). Free copy available here.

Held: The Southeastern Pennsylvania Transportation Authority (“SEPTA”), may not be considered an “arm” of the Commonwealth of Pennsylvania which, under the Eleventh Amendment to the United States Constitution, would confer upon SEPTA sovereign immunity from lawsuits brought by injured employees of its Regional Rail Division under the Federal Employees Liability Act (“FELA”).

2. Burnside v. Railserve, Inc., 2012 WL 6608946 (U.S.  District Court for the Western District of Arkansas, December 18, 2012). No free copy available at posting but free copy of related October 23, 2012 opinion available below.

FELA cases brought in state court are irremovable to federal court unless the allegations in the complaint are “so baseless, colorable, and false that the assertion thereof constitute[s] a fraud on the jurisdiction of the federal court.”

The operative question was whether Defendant was a “common carrier” within the meaning of FELA.

1. Held on October 23, 2012: On plaintiff’s earlier motion for remand FELA case from federal court back to state court – a motion that defendant opposed (wanting the case to remain in federal court) – federal court ruled that, “the Defendant’s carrier status is too much in dispute to label Plaintiff’s assertion a fraud.” Free copy of October 23, 2012 opinion available here.

“Turning to the facts at hand, the Court finds that Defendant’s carrier status is too much in dispute to label Plaintiff’s assertion a fraud. Defendant claims that, at the place Plaintiff was hurt, it provides only in-plant switching services. It denies that it loaded or unloaded cars or transported cargo for Georgia Pacific or for any other railroad. It also denies being paid to ship goods.

“Plaintiff, though, claims that a web of corporate relations—albeit a complicated one, as the Court sees it—ties Defendant to Georgia Pacific and to entities that plainly are common carriers. Plaintiff further notes that Defendant employs many workers qualified for railroad positions, and that Defendant is well connected to members of various railroad associations and groups.

“In short, Defendant makes a narrow argument, and Plaintiff makes a wide one. Both arguments have merit. On the one hand, “[w]hether a transportation agency is a common carrier depends not upon its corporate character or declared purposes, but upon what it does.” Lone Star Steel Co., 380 F.2d at 648 (quoting United States v. California, 297 U.S. 175, 181 (1936)). On the other hand, an entity’s corporate clothing is not irrelevant. The Lone Star Steel Co. defendant ultimately lost on the basis of its corporate structure. Kiernoski, 806 F.2d at 109 (“Lone Star became, in effect, part of the common carrier by virtue of Lone Star’s ownership of the common carrier, combined with Lone Star’s performance of the common carrier’s duties.”).

“The parties’ positions are each reasonable enough and at odds enough to preclude saying that Plaintiff’s common-carrier allegation is a fraud and a ruse. This is backed up by the split among courts that have considered Defendant’s status. Two courts have found Defendant not to be a common carrier: Ashworth v. Railserve, Inc., No. 09-09-00187-CV, 2010 WL 2172377 (Tex. Ct. App. May 27, 2010); and Allen v. Railserve, Inc., No. CIV. A. 00-3135, 2001 WL 1352323 (E.D. La. Oct. 31, 2001). Another, however, has found Defendant to be a common carrier. Benavidez v. Burlington N. Santa Fe Corp., No. G-07-00105, Doc No. 131, at 17–18 (S.D. Tex. Apr. 29, 2008)[Bolded emphasis supplied].”

2. Held on December 18, 2012: Defendant moved court to reconsider its October 23, 2012 ruling on the grounds that its citation to Benavidez v. Burlington N. Santa Fe Corp., No. G-07-00105, Doc No. 131, at 17–18 (S.D. Tex. Apr. 29, 2008) was questionable or wrongly decided in light of the fact that the order so cited was later vacated. This fact of subsequent vacating of the decision cited in the court’s October 23, 2012 in support of its order to send the case back to state court against Defendant’s wishes does not change the court’s reasoning for deciding as it did October 23, 2012:

“The Court cited to the Benavides case for the proposition that at least one court had found Defendant to be a common carrier under FELA. Defendant now rightly notes that the Benavides order to which the Court cited was later vacated. Benavides, Doc. No. 138. The Benavides order was a factor in the Court’s decision, but without it the Court’s decision would have been the same. The point of the Benavides order was not that the Court agreed with it, or even that it was a final decision on the issue, but rather that Defendant’s common-carrier status was questionable enough that a court could decide, even at the summary judgment stage, and even if its opinion later changed, that Defendant is a common carrier. Indeed, the vacillation in the Benavides court’s opinion only goes to show that Defendant’s status is not so settled as to make Plaintiff’s allegation a fraud.”

3. Robinson v. CSX Transportation, Inc., 2012 6629689 (District Court of Appeal of Florida, Fifth District, December 21, 2012). Free copy available here.

Held: Trial court below erred in evidentiary rulings to the extent of abusing its discretion in the following:

(1) “We hold the trial court abused its discretion by excluding the evidence regarding CSX’s failure to provide a backup hose or shoving platform. Evidence concerning the backup hose and shoving platform was relevant to whether CSX exercised reasonable care for Robinson’s safety”.

(2) “The trial court also abused its discretion by allowing impeachment of Robinson with the redacted accident report. Although Robinson had faulted both the truck driver and CSX in the accident report, the trial court’s redaction left the jury with a distorted impression of the report’s contents. Under the rule of completeness, once CSX opened the door by introducing that part of the report related to the truck driver, Robinson was entitled to bring in the redacted portion of the report in the interest of fairness.”

Note to the non-lawyer: The point of the court’s ruling on these two evidentiary points is not that the defendant railroad was in fact negligent. Instead it is that: 

“Had the trial court admitted the proffered testimony and allowed reference to the redacted portions of the accident report, the jury may well have reached a different result. Thus, these errors cannot be deemed harmless.”