Greene v. Long Island R. Co., Docket No. 00-9292.

• Decision Date: 11 February 2002
• Docket Number: Docket No. 00-9292.
• Citation: 280 F.3d 224
• Parties: Sean GREENE, Plaintiff-Appellee, v. LONG ISLAND RAILROAD COMPANY, Barbara A. Arias, Thelma Schulman, Defendants, Metropolitan Transportation Authority, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

280 F.3d 224

Sean GREENE, Plaintiff-Appellee, v. LONG ISLAND RAILROAD COMPANY, Barbara A. Arias, Thelma Schulman, Defendants, Metropolitan Transportation Authority, Defendant-Appellant.

Docket No. 00-9292.

United States Court of Appeals, Second Circuit.

Argued May 2, 2001.

Decided February 11, 2002.

Michael Flynn, Garden City, N.Y. (Elkind, Flynn & Maurer, Garden City, NY, on the brief), for Plaintiff-Appellant.

Thomas J. Schwarz, New York, N.Y. (Jeffrey Glekel, John P. Furfaro, Skadden, Arps, Slate, Meagher & Flom, New York, NY, on the brief), for Defendant-Appellant.

Before MESKILL and KEARSE, Circuit Judges, and SQUATRITO, District Judge.^*

KEARSE, Circuit Judge

Defendant Metropolitan Transportation Authority ("MTA" or the "Authority") appeals pursuant to 28 U.S.C. § 1292(b) from an interlocutory order of the United States District Court for the Eastern District of New York, Leonard D. Wexler, Judge, denying its motion for summary judgment dismissing the personal injury claims asserted against it by its employee Sean Greene under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (1994) ("FELA" or the "Act"). In an opinion reported at 99 F.Supp.2d 268 (2000), the district court denied the motion on the ground that, as owner and operator of defendant Long Island Railroad Company ("LIRR"), which MTA acknowledges is a railroad engaged in interstate commerce, MTA is a "common carrier by railroad" within the meaning of the Act. On appeal, MTA contends that the railroad is "operated" only by LIRR, not MTA, and that the district court's ruling was thus erroneous. For the reasons that follow, we disagree and affirm the order of the district court.

I. BACKGROUND

The following facts, along with others discussed in Part II.B. below, do not appear to be in dispute. MTA is a public benefit corporation created by the New York State Public Authorities Law ("Public Authorities Law"). See N.Y. Pub. Auth. L. §§ 1263(1), 1264(2) (McKinney 1999). The Public Authorities Law describes MTA's responsibilities as including

the continuance, further development and improvement of commuter transportation and other services related thereto within the metropolitan commuter transportation district, including but not limited to such transportation by railroad, omnibus, marine and air, in accordance with the provisions of this title.

Id. § 1264(1) (emphasis added). With exceptions not pertinent here, MTA is given the power to "acquire ... any transportation facility," id. § 1266(1), and, inter alia, to "operate, maintain, renovate, improve,... or repair" such a facility and "lease railroad cars for use in its passenger service," id. §§ 1266(2) and (7). MTA may levy and collect fares, and it may establish schedules, standards of operation, and public safety rules and regulations as necessary for the "use and operation of any transportation facility." Id. § 1266(3). MTA may exercise these powers itself or it may "cause one or more of its powers ... to be exercised or performed by[] one or more wholly owned subsidiary corporations." Id. § 1266(5). MTA wholly owns two subsidiaries that are commuter railroads: LIRR and Metro-North Commuter Railroad Company ("Metro-North").

Prior to 1998, LIRR maintained its own police force. Greene was employed by LIRR as a police officer from April 1991 through December 1997. His duties consisted principally of conducting surveillance at parking lots at railroad stations maintained by LIRR, in order to detect and deter thefts of and robberies from parked vehicles. In 1997, the Public Authorities Law authorized MTA to provide and maintain a police department for all MTA affiliates, including LIRR. See id. § 1266-h(1). Pursuant to this provision, MTA consolidated police services effective January 1, 1998, forming the "MTAPD," and all LIRR police officers became MTA employees, see id. § 1266-h(2) (initial appointments to MTA police force to be "all incumbent police officers from [LIRR] and/or ... Metro-North"). On that date, as a result, Greene became an MTA employee and was no longer an employee of LIRR. Greene was assigned to MTAPD's Auto Crime Unit; his duties as an MTA police officer continued to consist primarily of surveilling LIRR parking lots.

The present action arises out of a vehicular accident that occurred while Greene was on duty on March 4, 1998. Greene and fellow officer John Wyckoff were dispatched by a radio operator to respond to a report of car theft at the LIRR station in Ronkonkoma, New York. The officers proceeded in a jeep, driven by Wyckoff, which was owned by LIRR ("LIRR jeep"). En route to the Ronkonkoma station, the LIRR jeep collided with a car driven by defendant Barbara Arias and owned by defendant Thelma Schulman. Greene alleges that the collision caused him disabling injuries; in addition to asserting claims against Arias and Schulman, he asserts claims against MTA pursuant to FELA and against LIRR pursuant to FELA and state law. The complaint alleges that MTA was negligent in failing to provide Greene with safe working conditions, including by failing to equip the jeep with a siren and adequate emergency lights and flashers; in operating the vehicle in such a negligent manner as to cause an accident; and in failing to enact or enforce safety rules for personnel in Greene's workplace.

Following discovery, MTA and LIRR jointly moved for partial summary judgment dismissing the claims asserted against them under FELA. While conceding that LIRR is a railroad engaged in interstate commerce, they argued principally (a) that LIRR could not be held liable under FELA because at the time of the accident it was not Greene's employer, and (b) that MTA could not be held liable under FELA because it is not a common carrier by railroad within the meaning of the Act. MTA argued that LIRR operates its own "transportation facilities" and that MTA's involvement with LIRR is limited to indirect support functions such as "`coordinat[ing] the planning and overall policies of its agencies, approv[ing] operating and capital budgets and performance plans, and monitor[ing] financial and operating activities,'" Greene v. Long Island R. Co., 99 F.Supp.2d at 273 (quoting MTA letter to United States Railroad Retirement Board dated December 17, 1997, at 1) (alterations ours); see also MTA's Memorandum of Law in Support of Motion for Reconsideration at 9.

The district court denied the motion. Finding that "it is not the corporate form of the entity that is dispositive" in "determining whether a defendant is a common carrier," 99 F.Supp.2d at 272, the court reviewed both MTA's functions and MTA's public characterizations of its role in railroad operations. The court noted that the legislation creating MTA "charges it with the `continuance, further development and improvement of commuter transportation and other services related thereto,'" 99 F.Supp.2d at 272 (quoting N.Y. Pub. Auth. L. § 1264(1)), and that

[t]o these ends, the MTA has broad powers including the power to:

• acquire transportation facilities;

• "establish, construct, effectuate, operate, maintain, renovate, improve, extend or repair" any facility acquired;

• establish and collect fares and tolls;

• establish standards of operation and rules and regulations regarding the conduct and safety of the public;

• lease railroad cars for use in passenger service and,

• "do all things it deems necessary, convenient or desirable to manage, control and direct the maintenance and operation of transportation facilities, equipment or real property operated by or under contract, lease or other arrangement" with MTA.

N.Y. Pub. Auth. L. § 1266(1)-(8).

99 F.Supp.2d at 272. The court observed that

MTA refers to itself as the "largest public transportation provider in the Western Hemisphere." CFO's Letter of Transmittal dated March 27, 1997, Comprehensive Annual Financial Report of MTA for year ended December 31, 1997.

99 F.Supp.2d at 272. Further,

[w]hen describing its functions, the MTA states that it "coordinates the planning and overall policies of its agencies, approves operating and capital budgets and performance plans, and monitors financial and operating activities of its agencies." The MTA also states that it "is responsible for certain cross agency support functions." The MTA characterizes its subsidiary agencies, including its commuter rails as "serv[ing] the public by operating the transportation facilities." Letter dated December 17, 1997 from MTA to General Counsel, U.S. Railroad Retirement Board....

While the MTA's component units are certainly responsible for providing transportation services, the MTA itself is intimately involved in the management, not only of its subsidiaries' finances, but of their real estate and other assets. Thus, the MTA states that the "careful management" of its real estate assets has included a leaseback transaction for the LIRR Hillside maintenance facility, where LIRR trains are repaired and maintained, which transaction produced approximately $22 million in capital funds for the MTA. Funds so obtained, along with other MTA funds are used, inter alia, for repairing and upgrading railroad infrastructure, building new facilities and buying new equipment.

The MTA has significant involvement in the marketing of the transportation services available through its subsidiary and component units. The MTA website refers to all transportation facilities (including the LIRR) as part of the "network" of MTA services. Riders are referred to as "MTA customers." Among other things, the MTA takes credit for "offer[ing] the region efficient, environmentally sound travel alternatives."

99 F.Supp.2d at 273-74. The court concluded that by virtue of its "extensive involvement" in LIRR's activities, MTA "operates" a common carrier according to the plain meaning of that word, and that suit against MTA under FELA is permissible because Greene "is no less employed by a common carrier today than when he...