Fross v. Norfolk Southern Railway Company
| Decision Date | 24 September 2021 |
| Docket Number | A21A0990 |
| Citation | 361 Ga.App. 235,863 S.E.2d 714 |
| Parties | FROSS v. NORFOLK SOUTHERN RAILWAY COMPANY. |
| Court | Georgia Court of Appeals |
Michael J. Warshauer, Trent Scott Shuping, Atlanta, Jasper Vaughndale Abbott, for Appellant.
Franklin Peeples Brannen Jr., Admir Allushi, Lillian Kate Henry, Atlanta, for Appellee.
Professional Transportation, Inc. (PTI) employee, Donna Fross, was injured while working at Norfolk Southern Railway Company's rail yard. She sued Norfolk Southern, asserting a claim under the Federal Employers’ Liability Act (FELA), 45 USC § 51 et seq. The trial court granted summary judgment to Norfolk Southern, finding that Fross was not its employee for the purposes of FELA. Fross now appeals, arguing that the trial court erred because there is at least a question of fact as to whether she was Norfolk Southern's employee under FELA. She further argues that the trial court should not have dismissed the entire case because she pled an alternative state law claim for negligence. For the reasons that follow, we conclude that Fross was not an employee of Norfolk Southern under FELA, and therefore affirm the trial court's judgment as to this issue. However, because the trial court did not rule on whether the alternative state law claim was sufficiently pled, we vacate the final order in part, and remand the case for further proceedings.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
(Citation omitted.) Thurman v. TCFPA Family Med. Centers , 358 Ga. App. 439, 439, 855 S.E.2d 431, 432 (2021).
So viewed, the record shows that PTI and Norfolk Southern entered into a services contract under which PTI agreed to provide vehicles and drivers to transport Norfolk Southern's train crews at its Georgia locations, including the Inman Yard. PTI hired Fross as a transport driver, and she was eventually assigned to the Inman Yard. While there, Fross drove a van to pick up train crews and drop them off at various locations in the rail yard, as requested by the Norfolk Southern yardmaster.
Specifically, Fross used a two-way radio in her van to announce to the Norfolk Southern yardmaster that she was on duty, and then she would wait for the request for a crew transport. The yardmaster would provide the originating location of the crew members and tell her where to bring them, and would also impose time limits on these trips. Except when a specific route was required due to obstructions caused by trains or other conditions, Fross could choose what route to take based on maps of the rail yard provided by PTI.
At the beginning of each shift, Fross was required to clock-in on a computer PTI had furnished in the van, and she would also use this computer to log every trip she took to transport train crews. PTI trained and paid Fross, but she was also required to follow Norfolk Southern's safety guidelines, which were applicable to all of its contractors. If Norfolk Southern had a complaint about her work performance, the issue was handled by Fross's PTI supervisor. Fross attended monthly PTI employee meetings, and she met with her PTI supervisor once or twice a week.
On the day of the incident, after dropping off a crew, Fross exited her van to perform a visual check to ensure she could back out safely, as required by her training. As she was returning to the driver's side of the van, she slipped and fell backwards on the ballast, injuring herself. Fross received workers’ compensation benefits from PTI.
Fross sued Norfolk Southern, alleging that it was her employer, and was thus liable under FELA.1 She filed a motion for partial summary judgment, seeking a determination that she was an employee of Norfolk Southern for FELA purposes. Norfolk Southern filed a cross-motion for summary judgment, contending that it was not Fross's employer under FELA. After a hearing, the trial court found, as a matter of law, that Norfolk Southern was not Fross's employer. This appeal followed.
1. In related enumerations of error, Fross contends that the trial court erred by granting summary judgment to Norfolk Southern because there was at least a question of material fact as to whether she was its employee for FELA purposes. Having thoroughly reviewed the record, we affirm the trial court's finding that Fross was not an employee of Norfolk Southern at the time of her accident as a matter of law.
FELA provides an exclusive tort remedy to railroad employees injured during the course of their employment.2 45 USC § 51 ; Norfolk Southern R. Co. v. Lewis , 345 Ga. App. 196, 197, 813 S.E.2d 165 (2018) ; Brooks-Powers v. MARTA , 260 Ga. App. 390, 394 (1), 579 S.E.2d 802 (2003). Whether an injured party was acting as an employee of the railroad at the time of the accident is determined by federal law, and is typically a question of fact.3 Lindsey v. Louisville & Nashville R. Co. , 775 F.2d 1322, 1324 (I) (5th Cir. 1985) ; Moss v. Central of Ga. R. Co. , 135 Ga. App. 904, 905, 219 S.E.2d 593 (1975) (). However, where reasonable minds could not differ on the issue, summary judgment is properly granted. Baker v. Texas & Pacific R. Co. , 359 U. S. 227, 228, 79 S.Ct. 664, 3 L.Ed.2d 756 (1959).
In Kelley v. Southern Pacific , 419 U. S. 318, 95 S.Ct. 472, 42 L.Ed.2d 498 (1974), the United States Supreme Court applied common law agency principles to determine whether an employee of a third-party contractor of a railroad may be deemed an employee of the railroad:
[T]here are basically three methods by which a plaintiff can establish his ‘employment’ with a rail carrier for FELA purposes even while he is nominally employed by another. First, the employee could be serving as the borrowed servant of the railroad at the time of his injury. Second, he could be deemed to be acting for two masters simultaneously. Finally, he could be a subservant of a company that was in turn a servant of the railroad.
(Citations omitted.) Id. at 324 (II), 95 S.Ct. 472 ; see also Estate of Anderson v. Martin Marietta Materials , 255 Ga. App. 844, 846 (1), 567 S.E.2d 33 (2002).
Here, Fross argues that her FELA claim survives because she was either a borrowed servant or a dual servant.4 Under either theory, Fross must show that Norfolk Southern maintained "a significant supervisory role" over her work at the time of her injury. Kelley , 419 U. S. at 327 (III), 95 S.Ct. 472. In other words, "[t]he pre-eminent criterion for determining the status of a contractor in an FELA action is the right of the railroad to direct, supervise and control the contractor in the course of [her] work." Moss , 135 Ga. App. at 905, 219 S.E.2d 593.
(Citations and punctuation omitted.) Wheeler v. Norfolk Southern R. Co. , 6 F.4th 626, 630-631 (II) (5th Cir. 2021).
Applying these standards, Fross's argument that Norfolk Southern had a significant supervisory role over the course of her work fails. Rather, the evidence of record shows that any authority Norfolk Southern exerted over Fross was in the nature of "the necessary cooperation" or "the passing of information and the accommodation" to PTI in carrying out the terms of the services contract. See Wheeler , 6 F.4th at 631 (II) ; Kelley , 419 U. S. at 329-330 (III), 95 S.Ct. 472 ; see also Royal v. Missouri & Northern Arkansas R. Co. , 857 F.3d 759, 763-764 (8th Cir. 2017).
Notably, the clear terms of the contract refute Fross's assertion that she was a borrowed or dual servant of Norfolk Southern:
[PTI] is and shall remain an independent contractor. [PTI] shall be solely responsible for, and [Norfolk Southern] shall not participate in, the employing or supervising of each Person engaged in discharging [PTI's] responsibilities under this Contract; all such Persons shall be the sole agents, servants and employees of [PTI].... Nothing contained in this Contract shall be deemed or interpreted to create a joint venture or undertaking or to constitute either [PTI] as agent (for any purpose) of [Norfolk Southern] or [Norfolk Southern] as agent (for any purpose) of [PTI].
See Estate of Anderson , 255 Ga. App. at 845, 846 (1), 567 S.E.2d 33 (); see also Moss , 135 Ga. App. at 906, 219 S.E.2d 593 ().
To support her position, Fross focuses on certain provisions of the services contract under which Norfolk Southern reserved the rights to specify which routes the PTI drivers used; to require PTI drivers to pass background checks and, upon doing so, to be issued badges allowing them access to the rail yard;...
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