Fontaine v. National R.R. Passenger Corp.

• Decision Date: 22 April 1997
• Docket Number: No. C021640,C021640
• Citation: 63 Cal.Rptr.2d 644,54 Cal.App.4th 1519
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 3764, 97 Daily Journal D.A.R. 6353 Mary J. FONTAINE, Plaintiff and Respondent, v. NATIONAL RAILROAD PASSENGER CORP., Defendant and Appellant.

Page 644

63 Cal.Rptr.2d 644

54 Cal.App.4th 1519, 97 Cal. Daily Op. Serv. 3764,

97 Daily Journal D.A.R. 6353

Mary J. FONTAINE, Plaintiff and Respondent, v. NATIONAL RAILROAD PASSENGER CORP., Defendant and Appellant.

No. C021640.

Court of Appeal, Third District, California.

April 22, 1997.

Certified for Partial Publication

As Modified May 16, 1997. ^*

John S. Gilmore, Charity Kenyon, Christine Cusick, and Diepenbrock, Wulff, Plant & Hannegan, Sacramento, for Defendant and Appellant.

Jack C. Sevey, Gerald J. Adler, and The Crow Law Firm, Sacramento, for Plaintiff and Respondent.

NICHOLSON, Associate Justice.

The National Railroad Passenger Corporation ("Amtrak") appeals from a $1.9 million jury verdict in favor of Mary J. Fontaine, who was severely injured in the course of her duties as an Amtrak assistant railroad conductor when she fell from a locomotive ladder. Amtrak presents numerous contentions of instructional error, and also argues the damages were excessive. ¹ We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 18, 1992, Fontaine fell as she was descending a locomotive ladder in Amtrak's Oakland coach yard. It was disputed at trial whether Fontaine stepped in some oil in the locomotive passageway before she fell. Despite five surgeries, Fontaine's left arm and hand are permanently disabled: She has a shortened left arm, is unable to grip or make a fist, and has lost about two-thirds of her normal wrist motion. She can no longer work as an operating railroad worker. She has gone back to school and is studying to become a journalist.

Fontaine sued Amtrak in July 1993 for negligence under the Federal Employers' Liability Act (FELA) and for strict liability under the Boiler Inspection Act (BIA), a part of the Safety Appliance Act (SAA). The BIA claim was based on the failure to provide a safe walking surface, due to the presence of oil on the walkway, and an unsafe grab iron. ² Amtrak responded Fontaine was the sole cause of her injuries and had failed to mitigate her damages.

After a 10-day trial, the jury deliberated four days before returning a verdict of $1,966,880; the jury found for Fontaine on both the FELA negligence cause of action and the BIA strict liability cause of action. ³ Asserting the damages were excessive, Amtrak moved for a new trial and for judgment notwithstanding the verdict; the trial court denied both motions.

DISCUSSION

Overview

Before addressing Amtrak's contentions of instructional error, we must first explain the The FELA provides, in pertinent part: "Every common carrier by railroad while engaging in commerce between any of the several States or Territories, ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, ... 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." (45 U.S.C. § 51.) The FELA further provides "the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee." (45 U.S.C. § 53.)

governing federal substantive law concerning railroad locomotive safety. At issue in this appeal are two interrelated statutory schemes: the FELA and the BIA.

The BIA provided, in pertinent part: "It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time in accordance with the provisions of this Act and are able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for." ⁴ (45 U.S.C. Former § 23.)

Proximate cause, as traditionally understood, is not required to establish causation under either the FELA nor the BIA. "Under the FELA, an employee is entitled to recover damages if the employer's negligence played any part in producing the injury, no matter how slight." (Taylor v. Burlington Northern R.R. Co. (9th Cir.1986) 787 F.2d 1309, 1313, italics in original; see Ellison v. Shell Oil Co. (9th Cir.1989) 882 F.2d 349, 353 ["An employee can recover damages under the FELA if the employer's negligence played any part, however slight, in producing his or her injury"]; see also Oglesby v. Southern Pacific Transp. Co. (9th Cir.1993) 6 F.3d 603, 608-609 [liability under the BIA is established if defendant's violation of the BIA "played any part, no matter how small, in bringing about or actually causing injury to the plaintiff ... without any requirement of a showing of negligence on the part of the defendant"], italics omitted.)

"The BIA and the SAA are regarded as amendments to the FELA. [Citation.] The BIA supplements the FELA to provide additional public protection and facilitate employee recovery. [Citations.] The BIA is to be considered together with other federal railroad safety laws, and is to be construed liberally to carry out their remedial and humanitarian purposes. [Citation.] [p] The FELA and the BIA further their humanitarian goals by imposing different types of liability. Liability under the FELA is premised on the railroad's negligence, however small. [Citations.] In contrast, the BIA imposes on the carrier an absolute duty to maintain the locomotive, and all its parts and appurtenances, in proper condition, and safe to operate without unnecessary peril to life or limb. [Citation.] The FELA allows recovery in a broad range of situations, while liability under the BIA only occurs under narrow circumstances. As a result, claims which cannot be maintained under the BIA are often actionable under the FELA. [Citations.]" (King v. Southern Pacific Transp. Co. (10th Cir.1988) 855 F.2d 1485, 1488, fn. 1.)

Thus, neither contributory negligence nor assumption of the risk is a defense to a BIA violation which has contributed to the cause of an injury. (Baltimore & Ohio R.R. Co. v. Groeger (1925) 266 U.S. 521, 528, 45 S.Ct. 169, 172, 69 L.Ed. 419.) A railroad is "bound absolutely to furnish ... [a locomotive] in proper condition for use without unnecessary danger." (Id. at [54 Cal.App.4th 1526] pp. 528-529, 45 S.Ct. at p. 172.) Proof of a BIA violation demonstrates "negligence as a matter of law." (Urie v. Thompson (1949) 337 U.S. 163, 189, 69 S.Ct. 1018, 1034, 93 L.Ed. 1282, 1303.)

I Contentions of Instructional Error

Amtrak contends the jury was confused over the distinction between negligence (the basis for FELA liability) and strict liability (the basis for BIA and SAA liability). Amtrak contends this confusion occurred because Fontaine (1) offered expert evidence which confused the two bases for liability, (2) confused the two bases for liability in her argument to the jury, and (3) confused the two bases for liability in her jury instructions as given by the court. As a result, Amtrak contends, the case was submitted to the jury "indiscriminately" as a strict liability case, resulting in prejudicial error and a miscarriage of justice. In addition, Amtrak argues the trial court erred in permitting the jury to consider evidence of a ladder design defect, claiming a design defect cannot constitute the basis for a BIA violation.

As an initial matter, Amtrak attempts to make far too much of the distinction between liability under the FELA and the BIA. Amtrak contends, "The plaintiff's exclusive remedy for negligence was FELA." Amtrak is mistaken. Fontaine's critical theory was strict liability under the BIA, which is a subpart of the FELA. If the plaintiff can show a violation of the BIA which in any way contributed to her injuries, she has established liability under both the BIA and the FELA. Even if the plaintiff cannot show a violation of the BIA which in any way contributed to her injuries, she may still recover under the FELA if she can show the employer was providing unsafe working conditions under negligence standards. (See Lilly v. Grand Trunk Western R.R. Co. (1943) 317 U.S. 481, 485, 63 S.Ct. 347, 350-51, 87 L.Ed. 411 [employee injured by reason of violation of the BIA brings action under the FELA and charges violation of the BIA].)

A.-B. ^**

C. Violation of Any Regulation as Violating BIA

Amtrak next contends the trial court "erred prejudicially in instructing that violation of any regulation violates BIA, subjecting Amtrak to strict liability." Amtrak asserts the trial court "misstate[d] the law" and thus "expanded Amtrak's exposure to strict liability." (Emphasis omitted.) Amtrak's argument skates perilously close to being a sufficiency of the evidence challenge regarding the presence of oil in the locomotive passageway.

Although we have previously set forth the content of the BIA, we do so again for ease in comparing the provisions of the BIA with the challenged instruction. The BIA provided: "It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier...