Collins v. Nat'l R.R. Passenger Corp.

Decision Date01 December 2010
Docket NumberNo. 143, Sept. Term, 2009.,143, Sept. Term, 2009.
Citation9 A.3d 56,417 Md. 217
CourtMaryland Court of Appeals

P. Matthew Darby (Guy M. Albertini and H. David Leibensperger of Berman, Sobin, Gross, Feldman & Darby, LLP, Towson, MD), on brief, for petitioner/cross-respondent.

Stephen B. Caplis (Daniel W. Goldberg of Setliff, Turner & Holland, P.C., Baltimore, MD), on brief, for respondent/cross-petitioner.



We are asked to determine whether a jury instruction proposed by the plaintiff in a suit brought pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60 (2006), was improperly denied. Michele Collins ("Petitioner" or "Collins") brought survivorship and wrongful death actions against the National Railroad Passenger Corporation ("Respondent" or " Amtrak") alleging that Amtrak's negligence caused the death of her husband and former Amtrak employee, Robert Collins ("Decedent" or "Mr. Collins"). Mr. Collins was electrocuted while on assignment to take alignment readings of overhead electrical wires on a span of railroad track. At trial, Amtrak contended that Mr. Collins was solely responsible for his fatal injuries because he mounted the roof of a work vehicle and came into contact with an energized wire absent any specific order to do so and in violation of a company rule. At trial, Collins proposed a jury instruction explaining that Amtrak could not defend against the negligence claim by asserting that the Decedent had assumed the risks of his injury. Although FELA expressly bars the assumption of risk defense, it was injected into the trial by Amtrak; therefore, the trial judge abused his discretion by not providing a cautionary instruction.1 Accordingly, we shall reverse and remand for a new trial.


On February 17, 2005, Mr. Collins was working his normal weekday shift, 10:00p.m. to 6:00 a.m., as an Electrical Traction Lineman based out of Amtrak's Perryville, Maryland, maintenance facility. Mr. Collins had been employed in the Electrical Traction Department for approximately eight years. He was a member of a crew of five men ("the crew" or "D-126") including: the crew foreman; the Cat Car 2 Operator; an Electric Traction Lineman; and an Electric Traction Lineman Trainee. Mr. Collins's job involved routine maintenance of the electrical catenary system 3 along Amtrak's northeast corridor, specifically the section between Perryville and Baltimore, Maryland.

Around 3:40 a.m., the crew was directed to conduct alignment readings of the catenary system on a recently serviced section of track. The electricity remained on while the readings were taken, so the crew foreman conducted a safety briefing to discuss working under the energized wire. Thereadings were taken and while the crew foreman was recording the data collected during the assignment, the men witnessed a bright flash, heard an explosion, and then a thump on the roof. Mr. Boone found Mr. Collins in flames on the roof of the Cat Car. Robert Collins suffered fatal electrical burns after coming into contact with an electrified railing on the roof of the Cat Car.

It is presumed that Decedent mounted the roof of the Cat Car to manually tie down the pantograph,4 and the physical evidence indicated that Decedent sustained his fatal injuries while "stomping." 5 "Stomping" was a method used by crew members of Amtrak's Mid-Atlantic South Division to communicate to Cat Car operators that the pantograph needed lowering. The "stomping" method required a crew member to climb atop the roof of the Cat Car and to stomp on the portion of the roof that was directly above the operator. 6 At trial, Amtrak officials testified that a crew member had to break the company's "three-foot" rule, which requires employees to maintain three feet of distance from the catenary system, in order to use the stomping method. On cross-examination,Amtrak officials conceded awareness of the "stomping" method, but acknowledged that it did not bar the practice.

During the trial, Amtrak officials and Decedent's fellow crew members testified about Decedent's work experience, safety training, and his decision not to invoke Amtrak's Right of Refusal policy.7 Collins offered an instruction on the inapplicability of the assumption of risk defense "because of the potential overlap with assumption of risk and contributory [/] comparative negligence.... What might happen is that they could say they believe Mr. Collins was standing there, he knew that the pantograph was energized and he took, you know, the classic voluntary assuming, getting close to the pantograph to do his job."

Collins's proposed instruction No. 17 stated:

45 U.S.C. § 54 of the Federal Employer's (sic) Liability Act provides in pertinent part
In any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to ... any of its employees, such employee shall not be held to have assumed the risks of his employment where such injury ... resulted in whole or in part from the negligence of any of the officers, agents or employees of such carrier....
Assumption of risk is not a proper defense in a FELA action and as such it may not be considered in any way in reaching your decision.
45 U.S.C. § 54[.]

The trial judge denied Collins's proposed jury instruction. According to the trial judge, the evidence did not inject assumption of risk into the case; therefore, an assumption of risk instruction would have only confused the jury on the issue of contributory negligence. The jury returned a verdict in favor of Amtrak at the conclusion of a five-day trial.

In her subsequent appeal to the Court of Special Appeals, Petitioner contended that "there was ample evidence from which the jury could have, and most likely did, improperly draw the conclusion that [Petitioner] should not recover because [the Decedent] assumed the risk of the incident." Collins v. Nat'l R.R. Passenger Corp., 187 Md.App. 295, 307, 978 A.2d 822, 829 (Md.Ct.Spec.App.2009). Amtrak filed a conditional cross-appeal requesting that the intermediate appellate court review the Circuit Court for Baltimore City's denial of Amtrak's motion for judgment should it decide to reverse the Circuit Court's judgment. The Court of Special Appeals affirmed the judgment, agreeing that the cautionary instruction was not necessary because all of the evidence tended to implicate contributory negligence and not assumption of risk. Collins, 187 Md.App. at 315-16, 978 A.2d at 834. Collins filed a petition for a writ of certiorari in this Court and asked:

Whether the Court of Special Appeals, in this case of first impression in Maryland, erred in not applying the majority rule 8 in FELA cases that a jury instructionstating thatassumption of the risk is not a defense should be given where there is any danger that the defense was explicitly or implicitly raised by the evidence, and in so doing erroneously affirmed the decision of the trial court not to give the instruction in this case.

Amtrak filed a cross-petition for certiorari and presented this question:

Whether the Court of Special Appeals erred by not reviewing and not overturning the trial court's denial of Amtrak's motion for judgment as the decedent was the sole cause of his injuries.

We granted both petitions. Collins v. Nat'l R.R. Passenger Corp., 411 Md. 598, 984 A.2d 243 (2009).

We hold that a notable portion of the evidence presented by Amtrak addressed elements relevant to the defense of assumption of risk and not necessarily relevant to contributory negligence. Amtrak's evidence drew attention to the voluntary nature of Decedent's encounter with the electrified equipment and his choice to mount the roof of the train car, both of which would be ancillary to a contributory negligence analysis, which requires proof of a careless act, or failure to act, beyond knowledgeable acceptance of a dangerous condition. Thus, acautionary instruction was necessary to instruct the jurors that they may not conclude that Mr. Collins assumed the risk of his injuries and that they were to apply the law applicable to contributory negligence only if they found first that Amtrak was negligent, and secondly that Mr. Collins's negligence contributed to his fatal injury. The error was not harmless because if the jury found that Decedent had assumed the risk of his injuries by voluntarily choosing to work under energized lines, that determination negated Amtrak's duty and operated as a complete bar to Petitioner's recovery. Further, we shall hold that the intermediate appellate court did not err in failing to reach the issue raised in Amtrak's conditional cross-appeal, because it was moot in light of that court's decision to affirm thejudgment of the Circuit Court. We shall reverse the judgment of the Court of Special Appeals and direct that court to remand the case to Circuit Court for purposes of a new trial.


We apply the abuse of discretion standard of review when considering a trial judge's denial of a proposed jury instruction. See Sidbury v. State, 414 Md. 180, 186, 994 A.2d 948, 951 (2010) (stating that "[t]he decision of whether to give supplemental instructions is within the sound discretion of the trial judge and will not be disturbed on appeal absent a clear abuse of discretion.") (citing Roary v. State, 385 Md. 217, 237, 867 A.2d 1095, 1106 (2005)). In Gunning v. State, 347 Md. 332, 351-52, 701 A.2d 374, 383 (1997), we reiterated that "[w]here the decision ... of the trial court is a matter of discretion it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." A trial judge exercises discretion by assessing whether the evidence produced at trial warrants a particular instruction on legal principles...

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