CSX Transp., Inc. v. Franklin Industries, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: SMITH; POPE
• Citation: CSX Transp., Inc. v. Franklin Industries, Inc., 445 S.E.2d 861, 213 Ga.App. 778 (Ga. App. 1994)
• Decision Date: 08 July 1994
• Docket Number: No. A94A0703,A94A0703
• Parties: CSX TRANSPORTATION, INC. v. FRANKLIN INDUSTRIES, INC.

Page 861

445 S.E.2d 861

213 Ga.App. 778

CSX TRANSPORTATION, INC. v. FRANKLIN INDUSTRIES, INC.

No. A94A0703.

Court of Appeals of Georgia.

July 8, 1994.

Casey, Gilson & Williams, Matthew D. Williams, Sandra Gray, Atlanta, for appellant.

Hicks, Casey & Young, William T. Casey, Jr., Marietta, for appellee.

SMITH, Judge.

This appeal involves an indemnification claim by CSX Transportation, Inc. (CSX), a common carrier by railroad, against Franklin Industries, Inc., owner and operator of a limestone plant in Anderson, Tennessee. Benny Crownover, a member of a CSX train crew, was injured on Franklin's property. Crownover brought a claim against CSX under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., for breach of CSX's non-delegable duty to provide a safe workplace. CSX brought a third-party claim against Franklin for allegedly creating and maintaining a dangerous condition on its land causing Crownover's injury. ¹ At the close of CSX's evidence the trial court granted Franklin's motion for a directed verdict, and CSX appeals.

Because the accident and injury occurred at Franklin's Tennessee plant, we apply the rule of lex loci delicti and consider the substantive elements of this cause of action under Tennessee law. Maryland Cas. Ins. Co. v. Glomski, 210 Ga.App. 759, 760, 437 S.E.2d 616 (1993). "The rule of lex fori controls all matters affecting only the remedy, such as rules of evidence, methods of shifting the burden of proof, and the presumptions arising from given states of fact." (Citations and punctuation omitted.) Menendez v. Perishable Distrib., 254 Ga. 300, 302, 329 S.E.2d 149 (1985). The standard of review of a directed verdict therefore is governed by Georgia law. See Abalene Pest Control Svc. v. Orkin Exterminating Co., 196 Ga.App. 463(1), 395 S.E.2d 867 (1990) (applying standard of review under Georgia law on summary judgment).

"A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict.... Where there is 'some evidence,' or 'any evidence' supporting the respondent's assertions, disputed issues are created which are for the jury's resolution." (Citations and punctuation omitted.) Jones v. Abel, 209 Ga.App. 889, 890(2), 434 S.E.2d 822 (1993). ² Applying this strict standard to the evidence in this case, we find that under Tennessee law it does not demand a verdict in favor of Franklin, and therefore we must reverse the trial court's grant of a directed verdict.

Construed most strongly against Franklin, the evidence shows that Franklin and its predecessor in title, Cowan Stone Company, owned a rail siding that was served by CSX. Cowan had been inspected repeatedly and cited by the Tennessee Public Service Commission (TPSC) for maintaining dangerous conditions at the Anderson plant siding, and it is undisputed that after Franklin's purchase of the plant in 1988 the inspections and citations continued. The dust created by processing and loading the limestone into railcars settled on and about the siding. Drainage at the site was extremely poor, so that any substantial rainfall caused quantities of water to accumulate at the siding, sometimes of sufficient depth to cover the rails completely. The water mixed with the limestone dust to form a particularly tenacious mud that also at times covered the rails and interfered with the operation of switches. The limestone powder on the surface of the water created a "mirror image" reflection so it was impossible to judge the depth of a puddle of water. All witnesses agreed that the siding was very muddy and slippery during and after rain and on the date of Crownover's injury.

Franklin used a front-end loader to move railcars on its siding. The front-end loader had large rubber tires that gouged out holes of varying depth as the loader skidded on the walkways alongside the tracks. When these holes filled with water mixed with lime dust the reflective surface made it impossible to tell how deep they were. The front-end loader bucket also bumped the corners of the railcars, bending and damaging the angle irons and ribs on the cars.

Franklin was outside the direct regulatory scope of the TPSC. However, the TPSC threatened to close the rail line into Franklin's property unless Franklin agreed to improve site conditions. Franklin responded to the TPSC and agreed to improve the site conditions by taking certain listed actions, including correcting the drainage problems and scraping and smoothing the walkways daily. The TPSC also recommended that instead of the front-end loader, Franklin use a trackmobile, a self-propelled device designed for moving railcars, to avoid destroying the walkways and damaging the cars. A trackmobile runs on the rails and thus does not gouge out or damage adjoining walkways. Because it couples to the railcars, it does not make intermittent and damaging contact with other parts of the cars. However, Franklin declined to purchase a trackmobile, stating that in its experience "a track mobile is a very high maintenance item," and it continued to use a front-end loader to move railcars on its siding.

The incident that gave rise to this action occurred on Franklin's siding on the evening of June 19, 1989. A CSX train crew arrived at the siding to drop off and collect railcars. Franklin had not smoothed the walkways that day, and the limestone mud was deep enough to cover the top of the engineer's six-inch boots. Crownover was preparing to board a train to begin the process of switching the cars out. He was aware of the muddy conditions, which he described as "like wet cement," but saw only "slush, water and mud" on the ground and did not observe any hole. However, as he prepared to board the last railcar in the train Crownover fell into a hole, severely injuring his knee on a hard object. Crownover's crew members came to his assistance and attempted to discover the cause of his fall. Only after "feeling around" in the mud with his bare hands did one of the crew discover a mud-encrusted piece of angle iron in the bottom of a hole. It resembled the angle irons that supported ladders on the ends of the railcars.

Applying Tennessee law to these facts, we find that the Tennessee "active-passive negligence rule" controls CSX's claim for indemnity. This rule provides that a tortfeasor guilty only of passive negligence may seek indemnity from another tortfeasor guilty of affirmative or active negligence for damages the first tortfeasor has been compelled to pay to an injured party. Continental Ins. Co. v City of Knoxville, 488 S.W.2d 50 (Tenn.1972); Velsicol Chem. Corp. v. Rowe, 543 S.W.2d 337 (Tenn.1976).

In this indemnity action, Franklin's liability is governed by Tennessee common law, regardless of the application of FELA to the main action, and CSX is subject to any defenses which could have been asserted by Franklin in a direct common-law action against it by Crownover. Southern R. Co. v. Foote Mineral Co., 384 F.2d 224, 228 (6th Cir.1967). Franklin asserts, and the trial court held, there was no evidence to support a finding of negligence on the part of Franklin, because Crownover had equal knowledge of the hazards on Franklin's property. We therefore look to Tennessee law governing the liability of owners and occupiers of land for conditions existing on their property.

"Before the owner or operator of a premises can be held liable for negligence in allowing a dangerous or defective condition to exist on the premises, such condition must have been created by the owner or operator or his agent, or, if created by someone else, there must be actual or constructive notice on the part of the owner or operator prior to the...