Chatham v. CSX Transp., Inc.

• Decision Date: 22 January 1993
• Citation: 613 So.2d 341
• Parties: William A. CHATHAM v. CSX TRANSPORTATION, INC. 1911147.
• Court: Alabama Supreme Court

Page 341

613 So.2d 341

William A. CHATHAM v. CSX TRANSPORTATION, INC.

1911147.

Supreme Court of Alabama.

Jan. 22, 1993.

Joel F. Alexander III, Birmingham, for appellant.

James F. Walsh and E. Berton Spence of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.

ON APPLICATION FOR REHEARING

SHORES, Justice.

This Court's opinion of December 11, 1992, is withdrawn and the following opinion is substituted therefor.

William Chatham appeals from a summary judgment entered in favor of CSX Transportation, Inc. Chatham filed a complaint against CSX in 1990 under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60, for damages for a loss of hearing he claimed to have incurred while he was employed by CSX as a carman. CSX moved for a summary judgment on the theory that Chatham's claim was time-barred under the FELA's three-year statute of limitations because he first learned in 1983 that his hearing loss might be work related. Chatham then filed an amended two-count complaint, claiming damages for deterioration of his hearing that had occurred within the three years before he filed this action and based on what he claimed was a negligent assignment by CSX that he says resulted in a subsequent aggravation of his existing hearing problem. The trial court entered a summary judgment in favor of CSX on all of Chatham's claims. Because Chatham did not properly raise any factual issues regarding his amended complaint, we affirm the judgment.

A summary judgment is proper when there exists no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P.; King v. Breen, 560 So.2d 186 (Ala.1990). In determining whether a summary judgment was properly entered, this Court will view the evidence in a light most favorable to the nonmovant and will resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the moving party. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So.2d 256 (Ala.1991). In determining the existence or absence of a genuine issue of material fact, this Court is limited to a consideration of the factors that were before the trial court when it ruled on the summary judgment motion. Broadmoor Realty, Inc. v. First Nationwide Bank, 568 So.2d 779 (Ala.1990). However, this Court's reasoning is not limited to that applied by the trial court. Hill v. Talladega College, 502 So.2d 735 (Ala.1987).

Once the moving party makes a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the nonmovant to go forward with evidence demonstrating the existence of a genuine issue of material fact. Grider v. Grider, 555 So.2d 104 (Ala.1989). Because this action was filed after June 11, 1987, the nonmovant must meet this burden by "substantial evidence." Alabama Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Under the substantial evidence test, the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Evidence submitted by a nonmovant in opposition to a motion for summary judgment must be in a form admissible in evidence; affidavits must be based on personal knowledge and must contain information that allows more than speculative inferences; documents must be admissible in evidence as either sworn or certified copies. Rule 56(e), Ala.R.Civ.P.; Perry v. Mobile County, 533 So.2d 602, 604 (Ala.1988). A party must move the trial court to strike any nonadmissible evidence that violates Rule 56(e). Failure to do so waives any objection on appeal and allows this Court to consider the defective evidence. Perry at 604-05.

The record reveals that Chatham and his employer became aware in 1977 that he had virtually no hearing in his left ear; upon learning that, his employer disqualified him from operating any wrecker or crane or working in the train yard. Chatham's employer apparently again in 1982 restricted him from operating a crane, because he was then wearing a hearing aid. Chatham learned from a physician in 1983 that the total hearing loss in his left ear was due to an earlier illness, but that he had sustained an untreatable hearing loss in his right ear due to his work environment at the railroad. (Deposition Exhibit 1, attached to defendant's motion for summary judgment, at R.15.) Chatham contends that, at his employer's request, he received hearing loss tests at various times throughout the course of his employment.

Interpretation of FELA claims and the determination of the degree of negligence necessary to support an FELA claim are questions governed by federal law. See Southern Ry. v. Roberts, 380 So.2d 774, 776 (Ala.1980), overruled on other grounds, Tidball v. Orkin Exterminating Co., 583 So.2d 239 (Ala.1991). "The 'slight negligence' necessary to support an FELA action is defined as a failure to exercise great care and that burden of proof is much less than the burden required to sustain recovery in ordinary negligence actions." Id. Federal courts have interpreted two Supreme Court cases, Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), and United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), to mean that an FELA claim accrues, and the statutory period of limitations begins to run, "when the plaintiff possesses sufficient critical facts from which the injury and its cause, including its work-relatedness, should be plainly known." McCoy v. Union Pac. R.R., 102 Or.App. 620, 623-24, 796 P.2d 646, 648 (1990) (citing DuBose v. Kansas City Southern Ry., 729 F.2d 1026, 1030 (5th Cir.), cert. denied, 469 U.S. 854, 105 S.Ct. 179, 83 L.Ed.2d 113 (1984)). Thus, a cause of action under the FELA arises when a claimant is, or reasonably should be, aware of his or her injury and knows, or in the exercise of reasonable diligence should know, of facts that indicate that the cause of the injury is work related.

Chatham admits that he was aware in 1983 of his hearing loss in his right ear and of its work-relatedness. He contends that the running of the limitations period should be tolled under the "continuous tort" doctrine of Fowkes v. Pennsylvania R.R., 264 F.2d 397 (3d Cir.1959). The continuous tort doctrine applies when an employer repeatedly exposes an employee to an occupational hazard, the deleterious effects of which accumulate over a period of time greater than the applicable period of limitations before the employee becomes aware of any injury.

Although the injury in Fowkes evolved from a series of incidents over a long time, the case is narrowly interpreted by most federal courts because the plaintiff in Fowkes did not discover his injury and its work-related cause until within three years of filing suit. ¹ "Fowkes can be fairly read as implying that had identification of the injury and its cause occurred before employment terminated, the discovery of injury (and cause) rather than the cessation of work would have marked the beginning of the limitations period." Kichline v. Consolidated Rail Corp., 800 F.2d 356, 359 (3d Cir.1986). We adhere to this clarification, which brings Fowkes in line with modern application of the continuing tort doctrine to FELA cases.

Chatham further relies on Fletcher v. Union Pac. R.R. for the following proposition:

"Where an injury is caused by continuing or repeated acts, the statute of limitations may not begin to run even when the tort is complete. The statute of limitations may be tolled until the tortious conduct ceases, on the theory that one should not be allowed to acquire a right to continue the tortious conduct. An employee's right of action against his employer for personal injuries may be tolled until the last day the employee was subjected to the conditions causing the injury."

Fletcher v. Union Pac. R.R., 621 F.2d 902, 908 (8th Cir.1980), cert. denied, 449 U.S. 1110, 101 S.Ct. 918, 66 L.Ed.2d 839 (1981). (Citations omitted.)

Chatham's reliance on Fletcher is misplaced as far as it applies to any tolling of the limitations period on Chatham's original claim, because the passage quoted from Fletcher concerned the question whether the limitations period had run on Fletcher's negligent assignment claim; that period was distinguishable from the limitations period for the claim for the original injury. Id. at 907. Because Chatham was aware of his injury and its cause in 1983, but did not sue until 1990, the limitations period ran out on his original FELA claim for damages based on injuries suffered before 1987, notwithstanding the continuing tort doctrine. See Kichline, supra, 800 F.2d at 360. For the above reasons, we hold that Chatham's original cause of action was time-barred, and that the trial court properly entered the summary judgment for CSX as to Chatham's claim for damages incurred before 1987.

It does not follow, however, that the running of the original limitations period has eliminated all of Chatham's claims against CSX. Id. at 361. Chatham brought two additional claims alleging negligent assignment and continuous exposure (aggravation), in his amended complaint. These claims represent separate FELA causes of action to which the continuous tort doctrine may apply; if it applies, the running of the limitations period is tolled as long as the employer's negligent conduct continues. Kichline v. Consolidated Rail Corp., 630 F.Supp. 50, 55 (E.D.Pa.1985), affirmed in part, remanded in part, 800 F.2d 356 (3d Cir.1986); Fletcher, supra, at 907-08 (negligent assignment). ²

The continuous tort doctrine, when applied in FELA cases, allows a plaintiff to have a cause of action against his or her employer for the worsening of existing injuries even though the limitations period has expired on the original cause...