Haischer v. CSX Transportation, Inc.

• Decision Date: 07 May 2004
• Docket Number: No. 57,57
• Citation: 848 A.2d 620,381 Md. 119
• Parties: Francis L. HAISCHER v. CSX TRANSPORTATION, INC.
• Court: Maryland Court of Appeals

848 A.2d 620

381 Md. 119

Francis L. HAISCHER v. CSX TRANSPORTATION, INC.

No. 57, Sept. Term, 2003.

Court of Appeals of Maryland.

May 7, 2004.

David S. Schnitzer (Bondurant & Appleton, P.C., on brief), Portsmouth, VA, for Petitioner/Cross-Respondent.

Dennis F. O'Brien, P. Matthew Darby, Theresa A. Rosendale, Baltimore, brief of Amicus Curiae Maryland Trial Lawyers Ass'n, for Petitioner/Cross-Respondent.

Douglas F. Murray (Stephen B. Caplis and Emily A. Daneker, Whiteford, Taylor & Preston, L.L.P., on brief), Baltimore, for Respondent/Cross-Petitioner.

Patrick Kavanaugh, Hamilton and Hamilton, Washington, DC, brief of Amicus Curiae The Ass'n of American Railroads for Respondent/Cross-Petitioner. Argued Before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

WILNER, Judge.

Petitioner, Francis Haischer, sued his former employer, CSX Transportation, Inc., under the Federal Boiler Inspection Act (BIA), 49 U.S.C. §§ 20701-03, for injuries he sustained while working as a locomotive engineer on March 1, 2000. A jury in the Circuit Court for Baltimore City found liability on CSX's part and awarded $203,898 in damages, including $101,949 for lost wages. On CSX's appeal, the Court of Special Appeals affirmed the judgment as to liability but concluded that the Circuit Court had erred in precluding collateral source evidence offered by CSX, and it therefore remanded for a new trial limited to damages. CSX Transp., Inc. v. Haischer, 151 Md.App. 147, 824 A.2d 966 (2003).

We granted cross-petitions for certiorari to consider whether the Court of Special Appeals erred (1) in concluding that the evidence was sufficient to sustain liability under the BIA, and (2) in holding that the collateral source evidence offered by CSX was admissible. We agree with the intermediate appellate court with respect to the first issue but shall reverse as to the second.

BACKGROUND

The accident in question occurred around 11:30 p.m. on March 1, 2000. Haischer and Rudy Carroll, the conductor, had been working, without incident, as a two-man crew on a switching job. When he went on duty just before 4:00, Haischer looked over the locomotive but did not find anything to be in improper condition. Near the end of their shift, Haischer and Carroll were in the locomotive on a side track waiting for permission from the dispatcher to enter the main track.

Inside the cab is a unit known as a Head of Train Device (HTD), which appears to be about the shape and size of a stereo receiver and sits on top of a console located immediately to the left of where the engineer sits. When in use, the device enables the engineer to monitor air pressure throughout the train. The back cover of the device, which is not immediately visible to the engineer when sitting in his seat, faces a small set of steps that lead to the nose area of the cab. The back cover of the HTD is attached to the unit by a piano hinge on the bottom and by two screws at the top.

While waiting for clearance to move, Haischer left his seat and went to a refrigerator in the nose of the engine to get some water for himself and Mr. Carroll. Haischer said that he may have brushed against the cabinet as he left, as there was very little room in the cab at that point. The steps leading to the nose are steep— 12 to 14 inches apart—and the area in the nose is constricted. Thus, Haischer said, when returning to the cab, he had to "kind of get your shoulders out first and then sort of take off like a runner from the starting block." Prior to his return, the screws holding the HTD door closed had come loose, and the door was hanging down on its hinge. As Haischer returned to the cab, he drove his shoulder hard into the hanging door, causing him to drop to his knees. Haischer said that it was both dark and noisy in the cab and that he did not see or hear the HTD door come open. The screws apparently were still in their holes, as Haischer testified that, after the accident, the door was re-closed and the screws tightened in order to keep the door shut. Haischer claimed that he had not previously noticed that the door had come open. Most of that part of Haischer's testimony was corroborated by Mr. Carroll.

As soon as he returned to the yard, Haischer reported the incident to the yardmaster and then immediately filed an accident report in which he claimed that the accident resulted from defective equipment, in that the rear cover of the HTD "was not secured properly." He kept an already-scheduled appointment with his doctor two days later to get a cortisone shot for pre-existing pain in the shoulder, and then, on March 20, saw an orthopaedic surgeon, Dr. Wardell, who had been suggested to him by a friend. Dr. Wardell initially diagnosed his condition as an acute exacerbation of a pre-existing calcium deposit and resulting bursitis; he recommended, and ultimately performed, surgery to correct that condition and determine if anything else was amiss. The surgery revealed a tear in the rotator cuff; the doctor removed the calcium deposit and repaired the tear. Dr. Wardell later opined that the rotator cuff tear was caused by the accident and that, because of the demands of the job, Haischer was permanently disabled from continuing to work as a locomotive engineer. Haischer made casual inquiries into other employment but declined vocational rehabilitation assistance belatedly offered by CSX and has not returned to work since the accident on March 1, 2000.

In June, 2000, Haischer filed suit under both the Federal Employer's Liability Act (FELA), 45 U.S.C. §§ 51-60, and the BIA, alleging, among other things, that (1) the HTD device, and therefore the locomotive, was defective, (2) he had no knowledge of its defective condition, (3) he relied on information from others as to whether the locomotive was free from defective conditions or hazards, and (4) CSX should have known that the locomotive was unsafe due to the defective condition of the HTD device door. Prior to the commencement of voir dire, Haischer withdrew his separate FELA claim and proceeded solely on the BIA count. Liability on that count was the basis for the favorable judgment.

DISCUSSION

Liability Under BIA

Section 20701 of 49 U.S.C. provides, in relevant part, that a railroad carrier may use or allow to be used a locomotive only when the locomotive and its parts and appurtenances "are in proper condition and safe to operate without unnecessary danger of personal injury." That statute, first enacted in 1911, was codified as § 23 of Title 45 of the U.S.Code, dealing with railroads, and was part of a number of boiler inspection and safety appliance laws to which the Federal Employer's Liability Act applied. In 1994, the statute was code-revised and moved to title 49 as part of the Federal code revision effort. See P.L. 103-272, 108 Stat. 745, and House Report (Judiciary Committee) No. 103-180, 7/15/93, accompanying H.R. 1758, 4 U.S.C.C.A.N. 818, 916-920 (103rd Cong., 2d. Sess.1994).

Standing alone, § 20701 does not purport to confer any rights on persons injured when coming into contact with a locomotive or parts thereof that are not in proper condition and safe to operate. As the Supreme Court made clear in Urie v. Thompson, 337 U.S. 163, 188, 69 S.Ct. 1018, 1034, 93 L.Ed. 1282, 1302 (1949) with respect to the predecessor statute (title 45, § 23), however, "it has been held consistently that the Boiler Inspection Act supplements the Federal Employers' Liability Act by imposing on interstate railroads `an absolute and continuing duty' to provide safe equipment." That conclusion, it stated, "stems, not from any express statutory language, but by implication from §§ 3-4 of the Federal Employers' Liability Act, 45 U.S.C. §§ 53-54. . . which bar pleadings of, respectively, contributory negligence and assumption of risk `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.'" The Court explained that, although it is § 1 of FELA (45 U.S.C. § 51) that creates the basis of an employee's suit for violation of the BIA and that section refers to defects due to the railroad's "negligence," it was the Congressional intent "to treat a violation of the Safety Appliance Act as `negligence'—what is sometimes called negligence per se." Id. at 189, 69 S.Ct. at 1034,93 L.Ed. at 1303, (quoting from San Antonio & A.P.R. Co. v. Wagner, 241 U.S. 476, 484, 36 S.Ct. 626, 630, 60 L.Ed. 1110, 1117 (1916)). Thus, the Court concluded that the BIA is substantively an amendment to the FELA and "dispense[s], for the purposes of employees' suits, with the necessity of proving that violations of the safety statutes constitute negligence; and making proof of such violations is effective to show negligence as a matter of law." Urie v. Thompson, supra, at 189, 69 S.Ct. at 1034,93 L.Ed. at 1303. See also Lilly v. Grand Trunk W. R.R. Co., 317 U.S. 481, 485, 63 S.Ct. 347, 351, 87 L.Ed. 411, 415 (1943)

: ("Negligence is not the basis for liability under the [Boiler Inspection] Act.").

CSX contends that Haischer failed to present any evidence that the HTD device was not in "proper condition" or was not "safe to operate without unnecessary danger of personal injury"—that it was defective in any way. The railroad suggests three possible reasons for the door coming loose—that Haischer brushed against it, causing it to fall open; that it came open due to continuous vibration from operation of the engine; or that maintenance personnel failed to tighten the screws adequately—and it maintains that none of those reasons creates liability under BIA. The first two possible reasons, it claims, do not show any defect in the device, which is a necessary element for liability; the third, it argues, constitutes not a defect in the device but negligence on the part of other employees, which may be the basis for liability under FELA but not under BIA. In that regard, it...