CSX TRANS., INC. v. Miller

• Decision Date: 01 October 2004
• Docket Number: No. 1142,1142
• Parties: CSX TRANSPORTATION, INC. v. Donald E. MILLER.
• Court: Court of Special Appeals of Maryland

858 A.2d 1025

159 Md.App. 123

CSX TRANSPORTATION, INC. v. Donald E. MILLER.

No. 1142, Sept. Term, 2003.

Court of Special Appeals of Maryland.

October 1, 2004.

Stephen B. Caplis (Amy E. Askew, Whiteford, Taylor & Preston, LLP on the brief), Baltimore, for Appellant.

C. Richard Cranwell (H. Keith Moore, Cranwell, Moore & Bullington on the brief), Roanoke, VA. (Guy M. Albertini, Theresa A. Rosendale, Albertini, Singleton, Gendler & Darby on the brief), Baltimore, for Appellee.

Panel: SONNER¹, SHARER, CHARLES E. MOYLAN, JR. (retired, specially assigned), JJ.

CHARLES E. MOYLAN, JR., Judge, retired, specially assigned.

The A, B, C's of Where We Are

This appeal is from a plaintiff's verdict in a Federal Employers' Liability Act ("FELA") case. That statement may be self-explanatory to the small handful of practitioners who labor regularly, or even occasionally, in that very specialized vineyard. One strongly suspects, however, that many who speak of FELA law with breezy familiarity are only whistling past the graveyard. To the more modest vast majority of the bar (and the bench), a FELA case is essentially, if not totally, terra incognita.² For those suddenly cast ashore on that exotic coast, it may be prudent, before plunging into the interior, to spend a few pages looking about and getting one's bearings.

A. A FELA Suit Is a Hybrid

The FELA law is a hybrid. It hovers ambivalently between workers' compensation law and the common law tort of negligence. It is neither, but it partakes of characteristics of both.

The FELA was, from its birth, a narrow solution to a narrow problem. The cause of action is very restrictive in its coverage, in terms of both defendants and plaintiffs. The only possible defendants are railroads engaged in interstate commerce. The only possible plaintiffs are the employees of those railroads who are injured on the job. The very title of the law, Federal Employers' Liability Act, is confusingly overbroad. As Reginald Parker, "FELA or Uniform Compensation for All Workers," 18 Law and Contemporary Problems (Duke University School of Law, 1953) (hereinafter "Parker") 208 n. 3, pointed out:

The title of the FELA is misleading. It is not a "federal employer" law but a [federal] law pertaining to employers; and it does not pertain to "employers" as such, either, because it merely applies to railroads.

(Emphasis supplied).

The approach taken by Congress in 1906 and 1908 was, by today's standards, strangely ad hoc, restricting the remedy to railroad workers alone. In 1920, the Congress was similarly ad hoc in passing the Jones Act, now codified as 46 U.S.C. §§ 688 et. seq., which gave to seamen in interstate commerce the same rights given to railroad employees by the FELA. Kernan v. American Dredging Co., 355 U.S. 426, 429-33, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958). Other long distance transportation employees, apparently because they were later to come onto the field, such as airline employees and interstate bus line employees were left uncovered by the FELA or the Jones Act or any similar act. Even railway express employees and Pullman car porters, for reasons largely lost in the mists, were not covered. Wells Fargo & Co. v. Taylor, 254 U.S. 175, 41 S.Ct. 93, 65 L.Ed. 205 (1920); Robinson v. Baltimore & O.R.R. Co., 237 U.S. 84, 35 S.Ct. 491, 59 L.Ed. 849 (1915). The FELA is, indeed, narrow in its focus.

The two-decade-long reform movement that culminated in the passage by Congress of the first FELA in 1906 was concerned with a type of social problem that, in the immediately ensuing decades, began to be addressed, at both state and federal levels, by the passage of workers' compensation laws. In 1906, however, workers' compensation was not yet a realistically viable option. Parker, at 215, has explained:

To leave injured railway workers to state workmen's compensation . . . was not possible in 1906 and 1908 when but few states had workmen's compensation laws, whose constitutional validity was considered dubious.

(Emphasis supplied).

By contrast, Congress was already looking favorably on workers' compensation laws by 1916, when it passed the Federal Employees' Compensation Act, 5 U.S.C. §§ 751 et seq., and by 1927, when it passed the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 et seq., as bona fide workers' compensation statutes. See Calbeck v. Travelers Insurance Co., 370 U.S. 114, 117-22, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962); Stanley v. Western Maryland Ry. Co., 301 Md. 204, 207-08, 482 A.2d 881 (1984).

The impetus for the FELA was that throughout the 1870's, 80's, and 90's, thousands of railroad workers were being killed and tens of thousands were being maimed annually in what came to be increasingly seen as a national tragedy, if not a national scandal. In concurrence in Wilkerson v. McCarthy, 336 U.S. 53, 68, 69 S.Ct. 413, 93 L.Ed. 497 (1949), Justice Douglas paraphrased President Theodore Roosevelt, a staunch and early champion of the FELA, in declaring that a national law was needed that "was designed to put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations." In Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 542, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994), the Supreme Court referred to the FELA's energizing purpose:

Cognizant of the physical dangers of railroading that resulted in the death or maiming of thousands of workers every year, Congress crafted a federal remedy that shifted part of the "`human overhead'" of doing business from employees to their employers.

(Emphasis supplied).

Justice Brennan, in Kernan v. American Dredging Co., supra, 355 U.S. at 431-32, 78 S.Ct. 394, described the FELA as a recognition that the railroad industry was better able to shoulder the cost of industrial injuries and deaths than were injured workers or their families:

[I]t came to be recognized that, whatever the rights and duties among persons generally, the industrial employer had a special responsibility toward his workers, who were daily exposed to the risks of the business and who were largely helpless to provide adequately for their own safety. Therefore, as industry and commerce became sufficiently strong to bear the burden, the law, the reflection of an evolving public policy, came to favor compensation of employees and their dependents for the losses occasioned by the inevitable deaths and injuries of industrial employment, thus shifting to industry the "human overhead" of doing business. For most industries this change has been embodied in Workmen's Compensation Acts. In the railroad and shipping industries, however, the FELA and Jones Act provide the framework for determining liability for industrial accidents.

(Emphasis supplied).

Thus, although the FELA is not a workers' compensation act, the social forces that produced it and the generating spirit that drives it resonate with the language and philosophy of workers' compensation principles.

B. The Enactment, and Reenactment, of the FELA

Twenty years of labor agitation and social reform, cheered on by the bully trumpeting of the sitting president, created the hydraulic groundswell that produced the first FELA in 1906. It subjected railroads to suits by injured employees. In January of 1908, however, the Supreme Court, in Howard v. Illinois Central R.R., 207 U.S. 463, 28 S.Ct. 141, 52 L.Ed. 297 (1908), struck down the act as unconstitutional for not having adequately confined the law to situations implicating interstate commerce. Congress, urged on by President Roosevelt, responded within three months by reenacting the FELA, now adequately confined to interstate commerce.

The reenacted FELA of 1908 is now codified as 45 United States Code Annotated, §§ 51 through 60. The heart of the act is spelled out by § 51, which provides in pertinent part:

Every common carrier by railroad while engaging in commerce between any of the several States ... 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, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

(Emphasis supplied).

A FELA claim may be brought in state or federal court. 45 U.S.C. § 56 provides, in pertinent part:

The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.

St. Louis Southwestern Railway Company v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985), further provides:

As a general matter, FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal.

Dan B. Dobbs, 1 The Law of Torts (2001), 312, briefly describes the FELA:

The FELA creates a federal claim on behalf of railroad workers injured on the job. The statute abolishes the defenses of contributory negligence and assumed risk and is interpreted to impose a liberal view of fault and causation that makes recovery relatively easy. Were there no such statutes, the railroad employees would ordinarily be limited to state tort law claims or workers' compensation payments for on the job injury or would be subject to defenses like contributory negligence and assumed risk. Although FELA cases are still negligence cases in the sense that negligence is an issue, some of the rules of conduct and litigation are different.

(Emphasis supplied).

C. The FELA Is Not a Workers' Compensation Law

Because the FELA does not impose on the railroads tort liability for injuries inflicted on the public generally, but is confined to liability for injuries suffered by employees in...