CSX Transp., Inc. v. Smith

• Decision Date: 17 October 2011
• Docket Number: No. S11G0556.,S11G0556.
• Citation: 717 S.E.2d 209,33 IER Cases 74,289 Ga. 903,11 FCDR 3170
• Parties: CSX TRANSPORTATION, INC. v. SMITH.
• Court: Georgia Supreme Court

11 FCDR 3170

289 Ga. 903

33 IER Cases 74

717 S.E.2d 209

CSX TRANSPORTATION, INC.

v.SMITH.

No. S11G0556.

Supreme Court of Georgia.

Oct. 17, 2011.

Casey Gilson, James Edwin Gilson, Karen Rebecca Dunbar, Atlanta, for appellant.

Michael J. Warshauer, Douglas Campbell Dumont, Atlanta, for appellee.

CARLEY, Presiding Justice.

CSX Transportation, Inc., which is a railroad involved in interstate commerce, employed Larry Smith as a conductor. On April 6, 2004, two supervisors allegedly observed Smith violate a safety rule by dismounting a moving train and subsequently removed him from service pending further investigation. Several hours later, Smith entered CSX's Terminal Administration Building in Walbridge, Ohio and was walking up a flight of stairs on his way to a union safety meeting when he slipped and hit his knee on the edge of a step. A small puddle of liquid soap was later found on the stair tread. Smith had knee surgery one year later.

In 2007, Smith brought suit against CSX in the Superior Court of Gwinnett County under the Federal Employers' Liability Act (FELA), which provides a federal tort remedy for interstate railroad employees who are injured while working within the scope of their employment. See 45 USC § 51 et seq.; Eubanks v. CSX Transp., 223 Ga.App. 616, 617(1), 478 S.E.2d 387 (1996). Smith moved in limine to exclude as irrelevant any evidence of past discipline by CSX, including the incident before his fall which allegedly caused two supervisors to advise him that he was “out of service.” The trial court granted that motion. At trial, the jury returned a verdict in favor of CSX, and the trial court entered judgment thereon.

The Court of Appeals reversed because the trial court refused Smith's request to instruct the jury regarding a federal Occupational Safety and Health Administration (OSHA) stair regulation requiring that “[a]ll treads shall be reasonably slip-resistant and the nosings shall be of nonslip finish.” 29 CFR § 1910.24(f). Smith v. CSX Transp., 306 Ga.App. 897, 901–903(2), 703 S.E.2d 671 (2010) (four judges fully concurred in this division). The Court of Appeals also concluded that, because of Smith's own actions, the trial court did not err in allowing CSX to cross-examine him regarding whether he had been taken “out of service” before his fall and to present evidence concerning this issue. Smith v. CSX Transp., supra at 899–901(1), 703 S.E.2d 671 (plurality), 904–905 (Andrews, P.J., dissenting, joined by two other judges). Presiding Judge Barnes concurred specially on the ground that Smith's failure to object or otherwise seek enforcement of the ruling on the motion in limine “could not open the door to the questioning by CSX.” Smith v. CSX Transp., supra at 904, 703 S.E.2d 671. Presiding Judge Andrews and two other judges dissented with respect to the jury charge issue. We granted certiorari to consider both issues raised in the Court of Appeals.

1. CSX contends that 29 CFR § 1910.24(f) does not apply to an indoor office building. CSX makes no assertion that this regulation does not generally apply to railroads, nor does it dispute the Court of Appeals' determination that evidence of an applicable OSHA regulation is admissible as evidence of a railroad's negligence. Smith v. CSX Transp., supra at 901–902(2), fn. 11, 703 S.E.2d 671 (citing Ries v. Nat. R. Passenger Corp., 960 F.2d 1156, 1165(III) (3d Cir.1992)).

Pursuant to the Occupational Safety and Health Act of 1970, the Secretary of Labor has issued two types of safety and health standards. “The first, known as the ‘general industry standards,’ see 29 C.F.R. pt.1910, act as a default set of standards.” CH2M Hill v. Herman, 192 F.3d 711, 717(II) (7th Cir.1999). As the Court of Appeals correctly held, those “general standards, which are set out in 29 CFR Part 1910, apply to any workplace, unless specifically excepted. 29 CFR § 1910.5(a). See also 29 CFR § 1910.5(c)(2).” Smith v. CSX Transp., supra at 902(2), 703 S.E.2d 671. See also 29 USC § 653(a). The general industry standards “are binding upon employers engaged in businesses affecting commerce. [Cit.]” Commissioner of Labor v. Gary Steel Products Corp., 643 N.E.2d 407, 413 (Ind.App.1994). “In addition, the Secretary has presented various industry-specific standards” which may specifically preempt the general standards. CH2M Hill v. Herman, supra. See also Commissioner of Labor v. Gary Steel Products Corp., supra. The Secretary of Labor has not promulgated any standards specific to the railroad industry.

However, OSHA regulations are inapplicable “to working conditions of employees with respect to which other Federal agencies ... exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.” 29 USC § 653(b)(1). Consistent with this directive, the Federal Railroad Administration (FRA) in 1978 issued a policy “statement indicating which aspects of the railroad industry fall under the exclusive jurisdiction of the FRA, thereby displacing applicable OSHA regulations.” Velasquez v. Southern Pacific Transp. Co., 734 F.2d 216, 218 (5th Cir.1984). See also Callahan v. Nat. R. Passenger Corp., 979 A.2d 866, 872 (Pa.Super.2009). The Occupational Safety and Health Review Commission (Commission) itself views that policy statement as a proper exercise of the statutory authority set forth in 29 USC § 653(b)(1) and defers to the statement with respect to which matters are appropriate for OSHA regulation on an industry-wide basis. Secretary of Labor v. Consolidated Rail Corp., 16 O.S.H. Cas. (BNA) 1033, 1993 O.S.H. Dec. ¶ 30012 (O.S.H.R.C.1993); Secretary of Labor v. Consolidated Rail Corp., 10 O.S.H. Cas. (BNA) 1577, 1982 O.S.H. Dec. (CCH) ¶ 26044 (O.S.H.R.C.1982).

The FRA policy statement “recognizes that OSHA has application to ‘the occupational safety and health of railroad employee(s).’ Policy Statement, 43 Fed.Reg. 10,583, 10,585 (March 14, 1978).” Callahan v. Nat. R. Passenger Corp., supra. In the statement, the FRA “delegated jurisdiction to [OSHA] for safety pertaining to ‘railroad yards, shops and associated offices ... with respect to conditions not rooted in nor so closely related to railroad operations.’ [Cit.]” (Emphasis supplied.) Ries v. Nat. R. Passenger Corp., supra at 1164(II)(C) (quoting 43 Fed. Reg., supra at 10,587). Furthermore, [t]he policy statement provides that “OSHA regulations concerning working surfaces deal with such matters as ladders, stairways, platforms, scaffolds and floor openings. Generally, these regulations are applicable in railroad offices, shops and other fixed work places.” [Cit.] (Emphasis supplied.)

Ledbetter v. Mo. Pacific R. Co., 12 S.W.3d 139, 142 (Tex.App.1999) (quoting 43 Fed.Reg., supra). Although the FRA's statement does describe three exceptions to this rule, none of those exceptions is applicable here. Ledbetter v. Mo. Pacific R. Co., supra at 143; 43 Fed.Reg., supra. See also Callahan v. Nat. R. Passenger Corp., supra at 873. Compare Velasquez v. Southern Pacific Transp. Co., supra.

In accordance with the FRA policy statement, we hold that the OSHA stairway regulations in 29 CFR § 1910.24 apply to railroad office buildings. Moreover, as our discussion above should make clear, the Court of Appeals correctly held that,

[i]n the context of 29 CFR Part 1910, the modifier “general industry” or “general industrial” plainly denotes that the standard has general application to any workplace and is not limited to certain industries that are subject to additional, particularized standards. [Cits.] Subpart D, which provides standards for “walking-working surfaces,” is such a general standard.

Smith v. CSX Transp., supra. Therefore, we are not persuaded by the apparently contrary decision of an administrative law judge, upon which CSX relies, that preceded the Commission's 1982 recognition of the FRA policy statement and that did not discuss the meaning of “general industrial” in the context of 29 CFR Part 1910. See Secretary of Labor v. Williams & Davis Boilers, 8 O.S.H. Cas. (BNA) 2148, 1980 O.S.H. Dec. (CCH) ¶ 24818 (O.S.H.R.C.A.L.J.1980). Where, as here, there is no relevant exception or preemption, the regulations of “fixed general industrial stairs” in 29 CFR § 1910.24, not being limited to a specific industry, apply to all fixed stairs in every industry regulated by OSHA. That classification goes beyond stairs located around “machinery, tanks, and other equipment” and includes “stairs leading to or from floors....” 29 CFR § 1910.24(a). See also 29 CFR § 1910.21(b)(8) (defining stairs, as used in § 1910.24, so as to include “[a] series of steps leading from one level or floor to another, or” leading to equipment). The stairs in CSX's office building on which Smith fell come within this description and not within the exceptions in 29 CFR § 1910.24(a) applying “to stairs used for fire exit purposes, to construction operations to private residences, or to articulated stairs....” Stairs in office buildings were not added to this list of exceptions even though they easily could have been so added.

Contrary to CSX's further argument, 29 CFR § 1910.23(d) is not the only possible applicable OSHA stair regulation. It regulates different aspects of stairway safety than does § 1910.24. The application of § 1910.23, like § 1910.24, depends on whether regulation of the particular conditions at issue has been preempted through FRA's policy statement. Secretary of Labor v. Consolidated Rail Corp., 10 O.S.H. Cas. (BNA) 1577, supra. Thus, the potential applicability of one section to a certain condition in a given industry does not exclude the other.

CSX alternatively contends that Smith offered no evidence at trial that 29 CFR § 1910.24(f) was violated. However, witnesses testified that the nosings were “vinyl and slippery” and that if the nosings had had a nonslip finish, Smith's boot would have caught on the edge of the stair, preventing his fall. Therefore, the Court of...