McGraw v. Norfolk & Western Ry. Co.

Decision Date15 December 1997
Docket NumberNo. 23996.,23996.
Citation500 S.E.2d 300,201 W.Va. 675
CourtWest Virginia Supreme Court
PartiesRobert McGRAW, et al., Plaintiffs Below, Appellants, v. NORFOLK & WESTERN RAILWAY COMPANY, et al., Defendants Below, Appellees.

Richard M. Huhn, Blumentiel, Huhn, Woods & Adams, Columbus, OH, Norris Kantor, Katz, Kantor & Perkins, Bluefield, for Appellant.

Angela W. Konrad, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, for Appellee Norfolk & Western Railway Company. McHUGH, Justice.

This case is before this court upon the appeal of Robert McGraw who, while employed by appellee Norfolk & Western Railway Co. (hereinafter "appellee" or "railroad"), sustained injuries when he was struck by a non-railroad employee. Appellant instituted an action against the railroad under the Federal Employers' Liability Act, 45 U.S.C. § 51 (1939), alleging, inter alia, that it was negligent in failing to alleviate the known danger presented by the non-railroad employee and in failing to provide appellant with a reasonably safe place to work. By order dated May 2, 1996, the Circuit Court of Mingo County entered summary judgment in favor of the railroad. See W.Va.R.Civ. P. 56.

This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For reasons discussed herein, the order of the circuit court is reversed and this case is remanded.

I.
A.

On or about June 29, 1993, the railroad crossing located at Duty Branch Road in Ragland, Mingo County, became blocked by the appellee's railroad cars. On that date, appellant was working for the railroad as a brakeman and was riding a cut of empty coal cars1 that were being delivered to a coal loadout facility located near the crossing. According to appellant, Clarence Ferrell, a non-railroad employee who has resided on Duty Branch Road since 1984, apparently became irate when he approached the blocked crossing. The Duty Branch Road crossing is the only access to Ferrell's home. Thus, whenever the crossing is blocked, it also blocks the road to Ferrell's home. Appellant testified that Ferrell got out of his truck, walked to the sidetracks, and angrily confronted him about blocking the crossing. Appellant claims that Ferrell struck him in the ribs, causing him to fall from the railroad car on which he was riding.2 As a result of the fall, appellant sustained injuries which have prevented him from returning to work at the railroad.

B.

The appellant instituted this action against the railroad, among others,3 under the Federal Employers' Liability Act, 45 U.S.C. § 51 (1939) (hereinafter "FELA"). Appellant has alleged that the railroad knew or should have known of the danger to appellant presented by Ferrell in that "Ferrell had previously assaulted and/or threatened physical violence to other persons employed by [appellee], as well as other non-employees, at or about the same location where [appellant] was attacked." Appellant's complaint alleged further that the railroad "negligently failed to warn [appellant] of a serious danger which it knew or should have known existed at or about a known work location; [that] [the railroad] negligently failed to take steps to alleviate the serious danger presented by [Ferrell] at or about a known work location; and [that] [the railroad] negligently failed to provide [appellant] with a reasonably safe place to work at or about a known work location."

The railroad filed a motion for summary judgment, which motion, following a hearing, was granted. In the order entered on May 2, 1996, the circuit court found, inter alia, that appellant failed to show that the railroad "knew or by reason of ordinary care could have known of any propensities toward violence by [Ferrell] and no facts were presented by [appellant] to establish that any official or supervisor of [appellee] prior to the incident... were ever advised of any such propensities." The court concluded, as a matter of law, inter alia, that the railroad could not have foreseen in the exercise of reasonable care that Ferrell would commit an intentional battery (an independent and intervening act) on appellant.

II.

This Court established in syllabus point one of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), that "[a] circuit court's entry of summary judgment is reviewed de novo."

A motion for summary judgment should be granted only when the moving party demonstrates that there is no genuine issue as to any material fact and that such party is entitled to judgment as a matter of law:

`A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

Syl. pt. 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

At the summary judgment stage, the circuit court's function is not "`to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 336 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986)). This Court must, therefore, draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Masinter v. WEBCO, 164 W.Va. 241, 242, 262 S.E.2d 433, 435 (1980).

III.
A.

The Federal Employers' Liability Act,4 45 U.S.C. § 51 (1939), provides, in relevant part:

Every common carrier by railroad while engaging in commerce ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative... 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 [.]

In enacting FELA, it was Congress' intention that it be a broad, remedial statute and, as such, should be given a liberal construction by courts. Ackley v. Chicago and North Western Transp. Co., 820 F.2d 263, 266 (8th Cir.1987) (citing Urie v. Thompson, 337 U.S. 163, 180, 69 S.Ct. 1018, 1029, 93 L.Ed. 1282 (1949)). See Gardner v. CSX Transportation, Inc., 201 W.Va. 489, 497, 498 S.E.2d 473, 481 (1997). Moreover, in considering the issues raised in this appeal, we are constrained to follow federal case law interpreting FELA. Federal and state courts have concurrent jurisdiction of claims brought under FELA. 45 U.S.C. § 56 (1948) ("The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States." Id., in part.) In FELA claims, although "a state court may use procedural rules applicable to civil actions in the state court unless otherwise directed by the act, ... substantive issues concerning a claim under the [FELA] are determined by the provisions of the act and interpretative decisions of federal courts construing the [FELA][.]" Chapman v. Union Pacific R.R., 237 Neb. 617, 467 N.W.2d 388, 393 (1991) (citing, e.g., Monessen Southwestern R. Co. v. Morgan, 486 U.S. 330, 108 S.Ct. 1837, 100 L.Ed.2d 349 (1988); St. Louis Southwestern R. Co. v. Dickerson, 470 U.S. 409, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985); Chesapeake & Ohio R. Co. v. Kuhn, 284 U.S. 44, 52 S.Ct. 45, 76 L.Ed. 157 (1931)). Indeed, only if federal law controls can FELA be given the "uniform application throughout the country essential to effectuate its purposes." Dice v. Akron, Canton & Youngstown R. Co., 342 U.S. 359, 361, 72 S.Ct. 312, 314, 96 L.Ed. 398 (1952). See Urie v. Thompson, 337 U.S. at 174, 69 S.Ct. at 1027 ("What constitutes negligence for the [FELA] statute's purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes. Federal decisional law formulating and applying the concept governs." Id. (footnote omitted)). Thus, "`state courts are bound by interpretation of the ... [FELA] given by the federal courts.'" Chapman, 467 N.W.2d at 393 (internal citation omitted). Accordingly, we hold that under the Federal Employers' Liability Act, 45 U.S.C. § 51 (1939), inter alia, "[e]very common carrier by railroad while engaging in commerce... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative ... 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[.]" Furthermore, pursuant to 45 U.S.C. § 56 (1948), federal and state courts have concurrent jurisdiction of claims brought under the Federal Employers' Liability Act, 45 U.S.C. § 51 (1939). Although a state court may use procedural rules applicable to civil actions in the state court unless otherwise directed by FELA, substantive issues under FELA are determined by the provisions of the statute and interpretative decisions of FELA given by the federal courts.

B.

As this Court recently stated in Gardner, supra, a successful FELA plaintiff must "`"prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation." '" Id., at 498, 498 S.E.2d at 482 (quoting Adams v. CSX Transportation, Inc., 899 F.2d 536, 539 (6th Cir. 1990) and Robert v. Consolidated Rail Corp., 832 F.2d 3, 6 (1st Cir.1987)). This statute imposes upon railroads a duty to provide its employees with a safe place to work. Gardner, at 498, 498 S.E.2d at 482. See Brown v. CSX Transportation, Inc., 18 F.3d 245, 249 (4th Cir.1994); Aparicio v. Norfolk & Western Ry. Co., 84 F.3d 803, 810 (6th Cir.1996); Peyton v. St. Louis Southwestern Ry....

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