Brooks-Powers v. MARTA, A02A2448.

• Decision Date: 19 March 2003
• Docket Number: No. A02A2448.,A02A2448.
• Citation: 579 S.E.2d 802,260 Ga. App. 390
• Parties: BROOKS-POWERS et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
• Court: Georgia Court of Appeals

579 S.E.2d 802

260 Ga. App. 390

BROOKS-POWERS et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.

No. A02A2448.

Court of Appeals of Georgia.

March 19, 2003.

Garland, Samuel & Loeb, Samuel L. Starks, Atlanta, for appellants.

Mabry & McClelland, Walter B. McClelland, Robert J. Routman, Atlanta, for appellee.

SMITH, Chief Judge.

After an employee of the Metropolitan Atlanta Rapid Transit Authority (MARTA) died in an on-the-job accident, Jean Brooks-Powers, as sole surviving spouse and as the administratrix of the decedent's estate, sued MARTA for damages citing federal statutory and constitutional law. Following the grant of summary judgment to MARTA, Brooks-Powers filed this appeal which poses three legal questions: whether Brooks-Powers obtained an implied right to sue under 49 USC §§ 5329 and 5330 of the Urban Mass Transportation Act (UMTA); whether she had a cause of action under the federal Due Process Clause; and whether a particular part of MARTA's answer constituted an admission in judicio. In ruling in favor of MARTA, the trial court answered all three questions of law in the negative, and so do we.¹

The following facts are not in dispute. On the morning of February 25, 2000, John Walter Powers was conducting an inspection of a segment of track located just outside the Avondale MARTA station. Prior to commencing work, Powers obtained clearance for him and his co-worker, Raymond Taylor, to inspect that area of track. At approximately 8:12 a.m., a MARTA train operated by Jennifer Armour suddenly slammed into the men, killing Powers and grievously injuring Taylor. Armour had a history of driving infractions that included two red light violations while operating a MARTA train.² An ad hoc accident investigation board conducted an investigation into the fatal incident and submitted recommendations for safety improvements.

On March 14, 2001, Brooks-Powers filed a notice of claim with the State Board of Workers' Compensation to obtain death benefits. MARTA's manager of claims, Donna Jennings, stated in an affidavit that the accident was accepted as compensable by the State Board of Workers' Compensation. Jennings also testified that "[a]s of April 4, 2002, MARTA has paid workers' compensation funeral expenses of $4,336.50 and paid weekly workers' compensation income benefits totaling $38,500.00 to the beneficiaries who have cashed workers' compensation checks."

By law, MARTA is a state-created local public authority and is subject to the provisions of the Georgia Workers' Compensation Act. Williams v. MARTA, 247 Ga.App. 52, 542 S.E.2d 199 (2000). "Where the Act is applicable, its provisions are the exclusive remedy for the employee against the employer.... The exclusivity provision is the bedrock of the workers' compensation system." (Footnote omitted.) Doss v. Food Lion, 267 Ga. 312-313(1), (2), 477 S.E.2d 577 (1996). While providing protection to injured employees, the Act expressly states that it is the injured worker's exclusive remedy. Subsection (a) of OCGA § 34-9-11 provides in applicable part: "The rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death." Absent an indemnification agreement or a statutory provision making an exception to the exclusive remedy provision, the workers' compensation system relieves employers not only of common law liability, but also of statutory liability toward their employees. See Flint Elec. Membership Corp. v. Ed Smith Constr. Co., 270 Ga. 464, 465-466, 511 S.E.2d 160 (1999).

In an apparent effort to circumvent the exclusivity provision of this state law, Brooks-Powers relies upon federal constitutional and statutory law and alleges that MARTA violated §§ 5329 and 5330 of the UMTA. Asserting a right to bring a private action under the UMTA, the lawsuit alleges that "MARTA's failure to comply with security and safety policies, provisions and regulations of the Urban Mass Transportation Act was the direct and proximate [cause] of the death of JOHN WALTER POWERS." In addition, relying on 42 USC § 1983, the suit asserts that Powers's federally protected constitutional rights were violated when he was deprived of a substantive due process right to a safe working environment under the UMTA. Finding that the UMTA did not include an implied right of action and also rejecting the substantive due process argument, the trial court granted summary judgment to MARTA. This appeal ensued.

1. Brooks-Powers contends that the trial court erred in granting summary judgment because federal law permits a private right of action by a transit worker for catastrophic injuries that result from the failure of a transit agency to comply with federal safety standards. She claims that the trial court failed to consider three federal cases, particularly Area Transp. v. Ettinger, 75 F.Supp.2d 862, 864 (N.D.Ill.1999). But Brooks-Powers fails to show that Ettinger, supra, or the other federal cases have any application here.

In Ettinger, a school bus company, Area Transport, sued Joel P. Ettinger, the regional manager of the Federal Transit Administration, claiming that its competitor, Flint Transport, was receiving federal grant money in violation of 49 CFR § 605 (concerning school bus operations). Concluding that Area Transport lacked standing, id. at 867, the district court dismissed the suit. In dicta, however, the district court noted:

The legislative history and statutory construction of the Urban Mass Transit Act ("UMTA") suggest that its general regulatory scheme was designed to benefit the public at large and not to create a special benefit for a particular class of persons. However, some courts have found that specific sections of the UMTA imply a private right of action.

(Citations and footnote omitted.)³ Ettinger, supra at 865.

Although Brooks-Powers argues otherwise, neither Ettinger nor the two other cases she cites provide support for her proposition that the survivors of an employee killed on the job can assert a private right of action. See United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir.1977); Stavisky v. Metro. Transp. Auth., 533 F.Supp. 1146 (E.D.N.Y.1982). First, neither Ettinger nor the other cases cited by Brooks-Powers involves a conflict between UMTA and state law. Second, in resolving whether a federal statute overrides long standing state law, we must consider the principle of preemption.

"The issue of federal preemption of state law is fundamentally a question of Congressional intent." (Citation and punctuation omitted.) Macon-Bibb County Hosp. Auth. v. Nat. Treasury Employees Union, 265 Ga. 557, 558(2), 458 S.E.2d 95 (1995). A plaintiff who asserts the existence of an implied right of action bears the burden of establishing that proposition. See generally Noe v. MARTA, 644 F.2d 434, 439 (5th Cir.1981). But Brooks-Powers has cited no provision in the UMTA, and we have found none, that shows that Congress expressly intended to preempt state workers' compensation laws and authorize an injured worker or his heirs to file a private right of action in these circumstances.

As to an implied right, in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the United States Supreme Court set forth several criteria for deciding whether an implied right exists.

In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?

(Citations omitted.) Id. at 78, 95 S.Ct. 2080.

Among the five stated purposes of the UMTA, nothing reflects a congressional intent to create a remedy for employees injured on the job. Congress listed the general purposes as being:

(1) to assist in developing improved mass transportation equipment, facilities, techniques, and methods ...; (2) to encourage the planning and establishment of areawide urban mass transportation systems...; (3) to assist States and local governments and their authorities in financing areawide ... mass transportation systems...; (4) to provide financial assistance ... to help carry out national goals related to mobility for elderly individuals, individuals with disabilities, and economically disadvantaged individuals; and (5) to establish a partnership that allows a community, with financial assistance from the Government, to satisfy its urban mass transportation requirements.

49 USC § 5301(f).

Similarly, Brooks-Powers's reliance upon 49 USC § 5329 of the UMTA, entitled "Investigation of safety hazards," is misplaced. That section merely authorizes the Secretary of Transportation to investigate safety hazards and requires the Secretary to report safety hazards to Congress. In its entirety, § 5329 consists of two subsections. Subsection (a) authorizes the Secretary of Transportation to

investigate a condition in equipment, a facility, or an operation financed under this chapter (49 USCS §§ 5301 et seq.) that the Secretary believes causes a serious hazard of death or injury to establish the nature and extent of the condition and how to eliminate or correct it. If the Secretary establishes that a condition causes a hazard, the Secretary shall require the local governmental

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