Greene v. Long Island R. Co.

• Decision Date: 02 June 2000
• Docket Number: No. CV 98-4316.,CV 98-4316.
• Citation: 99 F.Supp.2d 268
• Parties: Sean GREENE, Plaintiff, v. LONG ISLAND RAILROAD COMPANY, Barbara A. Arias, Thelma Schulman and Metropolitan Transportation Authority, Defendants.
• Court: U.S. District Court — Eastern District of New York

99 F.Supp.2d 268

Sean GREENE, Plaintiff, v. LONG ISLAND RAILROAD COMPANY, Barbara A. Arias, Thelma Schulman and Metropolitan Transportation Authority, Defendants.

No. CV 98-4316.

United States District Court, E.D. New York.

June 2, 2000.

Elkind, Flynn & Maurer, P.C., by Michael Flynn, Garden City, NY, for Plaintiff.

Hoguet Newman & Regal, LLP, by Melissa L. Weiss, Brian C. Dunning, Fredric S. Newman, NY, for Defendants.

MEMORANDUM AND ORDER

WEXLER, District Judge.

This is a case brought pursuant to, inter alia, the Federal Employers Liability Act, 45 U.S.C. § 51 ("FELA"). Plaintiff Sean Greene ("Plaintiff") is a police officer who, at the time of his alleged injury, was employed by the Metropolitan Transit Authority ("MTA"). Plaintiff alleges that he suffered an on the job injury when he was a passenger in a Jeep used as a surveillance vehicle to patrol a Long Island Railroad ("LIRR") station.

Presently before the court is the motion of defendants MTA and LIRR for summary judgment. MTA that argues it cannot be liable under FELA because it is not a common carrier within the meaning of the statute. While the LIRR concedes that it is a common carrier, it seeks summary judgment on the ground that it was neither Plaintiff's employer nor was Plaintiff a "borrowed servant" of the LIRR at the time of the injury.

As discussed below, the court holds, reluctantly, that the MTA is a common carrier and, consequently, that Plaintiff may seek recovery pursuant to FELA for his on the job injury. The court's reluctance comes not from any sense that the common carrier question is close. It arises, instead, from the court's conviction that FELA's liability standard regarding railroad workers injured on the job is one that has become outmoded.

In a time when other workers, including those involved in far more hazardous situations, are covered by a comprehensive scheme of workers' compensation benefits, it is archaic and unwarranted for railroad workers to be entitled to a different standard that takes them outside of the realm of the typical employee. Municipal police officers and firefighters are engaged in professions that daily subject them to situations far more dangerous than that of the typical railroad worker. Yet, if these individuals, who put their lives at peril every day, are injured on the job, they are covered by workers compensation benefits.

Each and every railroad worker, on the other hand, from the ticket taker to the administrative office worker, may collect damages under FELA, for an on the job injury. In such cases, the railroad employee is entitled to recover by showing that their injury is attributable to the negligence, however slight, of their employer. See Williams v. Long Island Railroad Co., 196 F.3d 402, 406-07 (2d Cir.1999).

While a statutory scheme aimed at protecting railroad workers from the "physical dangers of railroading" may have been necessary in 1908, when FELA was passed, that is no longer the case. In the absence of a change in the statute, however, this court is powerless to carve out exceptions to the Supreme Court's broad and longstanding definition of what constitutes a common carrier subject to FELA — a definition that, in this court's view, clearly encompasses the interstate operations of the MTA.

BACKGROUND

I. The Parties and the Accident

As noted above, Plaintiff was, at the time of his injury, a police officer employed by the MTA. The MTA is a public benefit corporation created pursuant to the Public Authorities Law of the Sate of New York. See N.Y. Pub. Auth. L. § 1264. The LIRR, which also exists pursuant to the New York State Public Authorities Law, is one of the wholly owned commuter railroad subsidiaries of the MTA.

Prior to 1997, the LIRR maintained its own police force. Beginning in 1997, New York law empowered the MTA to provide and maintain an MTA police force. LIRR police officers like Plaintiff, were, beginning in 1998, appointed to the newly established MTA police force. Thus, as of March 4, 1998, at the time of the accident forming the basis of Plaintiff's complaint, Plaintiff became an employee of the MTA and was no longer employed by the LIRR.

At the time of the accident Plaintiff was riding with his partner, police officer Wyckoff, in an unmarked Jeep used for surveillance purposes by MTA police officers assigned to the LIRR. Wyckoff and Plaintiff were responding to a call regarding auto theft at the Ronkonkoma, New York LIRR station. En route, the Jeep collided with a car driven by defendant Barbara Arias and owned by defendant Thelma Schulman. Plaintiff seeks damages as compensation for the injuries allegedly suffered as a result of this accident.

II. Plaintiff's Complaint and Defendants' Motion

Plaintiff's theory of recovery supporting federal jurisdiction is a claim brought pursuant to FELA. All other claims sound in common law negligence.

Defendants MTA and LIRR seek summary judgment on the FELA cause of action. MTA claims that it is not a proper defendant under FELA because it is not a common carrier within the meaning of the statute. LIRR, while conceding that its employees are subject to FELA, argues that it is not a proper defendant here because it was not Plaintiff's employer at the time of the accident and Plaintiff was not a "borrowed servant" sufficient to invoke FELA. The court considers the merits of the motion below.

DISCUSSION

I. Legal Principles

The Federal Employers' Liability Act imposes liability upon common carriers by railroad for the injury or death of railroad employees that results, in whole or in part, from the railroad's negligence or that of its employees. 45 U.S.C. § 51. See Edwards v. Pacific Fruit Express Co., 390 U.S. 538, 538, 88 S.Ct. 1239, 20 L.Ed.2d 112 (1968). FELA was enacted early in the last century to protect railroad employees from the physical dangers of railroading. Thus, the statute has been described as a "federal remedy" that shifts part of the "human overhead" costs from employees to employers. Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 542, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). As stated by Justice Douglas in 1949, the FELA was enacted to "put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations." Wilkerson v. McCarthy, 336 U.S. 53, 68, 69 S.Ct. 413, 93 L.Ed. 497 (1949) (Douglas, J., concurring).

By its express terms, FELA applies only to "common carriers." See 45 U.S.C. § 51; Chaneyfield v. City of New York, 525 F.2d 1333, 1336 (2d Cir.1975). The Supreme Court has construed this term simply, to mean "one who operates a railroad as a means of carrying for the public ...." Pacific Express, 390 U.S. at 540, 88 S.Ct. 1239, quoting, Wells Fargo & Co. v. Taylor, 254 U.S. 175, 187-88, 41 S.Ct. 93, 65 L.Ed. 205 (1920); see also Lone Star Steel Company v. McGee, 380 F.2d 640, 643 (5th Cir.1967) ("common carrier ... holds himself out to the public as engaged in the business of transportation of person or property from place to place for compensation, offering his services to the public generally"), quoting, Kelly v. General Elec. Co., 110 F.Supp. 4, 6 (E.D.Pa.), aff'd, 204 F.2d 692 (3d Cir.1953).

Where common carrier status is not found, it is generally because the business in which the entity is engaged is something other than the business of offering to transport goods or passengers by rail. For example, in Wells Fargo & Co. v. Taylor, 254 U.S. 175, 41 S.Ct. 93, 65 L.Ed. 205 (1920), the Supreme Court held that the defendant express messenger service company was not a common carrier. Thus, although the plaintiff-employee was riding in an express car provided by the railroad at the time of his injury, the company employing plaintiff was not in the business of providing rail service as a means of carrying for the public and was therefore not a common carrier within the meaning of FELA. Wells Fargo, 254 U.S. at 187-88, 41 S.Ct. 93; see also Robinson v. Baltimore & Ohio R. Co., 237 U.S. 84, 94, 35 S.Ct. 491, 59 L.Ed. 849 (1915) (Pullman car porter was neither a railroad employee nor an employee of a common carrier).

Similarly, in Edwards v. Pacific Fruit Express Co., 390 U.S. 538, 88 S.Ct. 1239, 20 L.Ed.2d 112 (1968), the Supreme Court held that an employee of a company that owned and leased refrigerated cars to railroads was not covered by FELA. There, despite the fact that the plaintiff was injured while on a railroad, he was not covered by FELA because his employer was not engaged in the business of offering to carry goods or passengers by rail and was, therefore, not a common carrier. Edwards, 390 U.S. at 543, 88 S.Ct. 1239.

In Edwards, the Supreme Court stressed that an entity is subject to FELA only if it operates a going railroad and FELA was never intended to cover those whose "activities and facilities which, while used in conjunction with railroads and closely related to railroading, are yet not railroading itself." Edwards, 390 U.S. at 540, 88 S.Ct. 1239.¹

When determining whether a defendant is a common carrier, it is not the corporate form of the entity that is dispositive. Instead, courts look to the actual operations of the entity to determine whether it is operating as a common carrier. See United States v. State of California, 297 U.S. 175, 181-82, 56 S.Ct. 421, 80 L.Ed. 567 (1936) (common carrier status under the Safety Appliance Act depends not upon "corporate character or declared purposes, but upon what it does"), quoting, United States v. Brooklyn Eastern Dist. Term., 249 U.S. 296, 304, 39 S.Ct. 283, 63 L.Ed. 613 (1919) (holding that freight terminal was a common carrier for purposes of the Hours of Service Act).

With these principles in mind, the court turns to consider whether the MTA is a common carrier by railroad that is subject to FELA.

II. The Purpose, Structure and Functioning of the MTA

A. Purpose of the MTA

As noted above, the MTA is a public benefit corporation created pursuant to the...