Hebel v. Conrail, Inc., 1-482A94

• Decision Date: 26 January 1983
• Docket Number: No. 1-482A94,1-482A94
• Citation: 444 N.E.2d 870
• Parties: 11 O.S.H. Cas. (BNA) 1135 Robert HEBEL, personal representative for Richard C. Hebel, Deceased, Appellant (Plaintiff Below). v. CONRAIL, INC., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 870

444 N.E.2d 870

11 O.S.H. Cas. (BNA) 1135

Robert HEBEL, personal representative for Richard C. Hebel Deceased, Appellant (Plaintiff Below). v. CONRAIL, INC., Appellee (Defendant Below).

No. 1-482A94.

Court of Appeals of Indiana First District.

Jan. 26, 1983.

Douglas C. Holland, Lawrenceburg, for appellant.

John F. Stroup, Lawrenceburg, for appellee.

ROBERTSON, Presiding Judge.

Robert Hebel (plaintiff), the personal representative of Richard C. Hebel's estate, appeals the negative judgment rendered on his claim for damages against Conrail, Inc. (Conrail), which was brought pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. Sec. 51 et seq. and which sought compensation for injuries his father, Richard Hebel (Hebel), received as a result of guarding a chemical spill site while employed as a policeman for Conrail. ¹

We reverse.

Robert raises several issues on appeal; we will address two of the issues which involve reversible error.

The facts reveal that a Conrail train derailed just west of Guilford, Indiana, at approximately 6:30 A.M. on February 22, 1977. A boxcar and a tankcar were involved. The tankcar was ruptured in the accident and the liquid chemical which it contained spilled into a ditch running along the north side of the tracks. Conrail's supervisor of train operations, who was in charge of the dispatcher's office, became aware of the accident and the resulting chemical spill shortly thereafter. By checking Conrail's records, he discovered that the tankcar contained a shipment of acrylonitrile for Monsanto. One of the supervisor's duties was to contact Chemtrec, an organization formed by shippers to provide information on hazardous chemicals in emergencies such as derailments. Chemtrec informed him that acrylonitrile is a toxic flammable liquid which is harmful if inhaled or absorbed through skin. Chemtrec further explained that anyone entering the spill area should wear self-contained breathing apparatus and fully protective clothing including rubber boots.

Approximately 35,000 gallons of acrylonitrile was spilled into the ditch and it drained to the east 500 feet to 600 feet where it flowed south through a culvert under the tracks towards a nearby stream. Because of the spill's size and the danger that it would reach the stream, and ultimately the Ohio River, many people were in the spill area shortly after the accident occurred attempting to dam the flow of acrylonitrile and to remove the damaged railroad cars. The derailed boxcar contained a shipment of particle board which was strewn in the ditch and became saturated with acrylonitrile.

Despite Chemtrec's admonishment, people working in the area, and particularly Conrail's policemen, were not warned of acrylonitrile's dangers or given protective equipment. An industrial hygienist from the Indiana State Board of Health conducted air tests at the spill site and the surrounding area between 11:30 A.M. and noon on February 22. The readings indicated an airborne concentration of acrylonitrile from 10 parts of acrylonitrile per one million parts of air (p.p.m.) to 20 p.p.m. at a distance of 10 feet to 20 feet from the tankcar. Tests taken near the ditch did not reveal detectable amounts of acrylonitrile. The hygienist conceded that the testing procedure used could have been inaccurate and that it had a normal variance of plus or minus 25%. Based upon the test results, the hygienist did not recommend use of self-contained breathing apparatus.

Several people were overcome by acrylonitrile during the first day of the clean-up. Workers described having headaches, congested nasal passages, nausea, dizziness, eye irritation and raspy voices. Some workers also said they could smell acrylonitrile as far away from the spill site as the parking lot on the west edge of Guilford which was used as a staging area. The parking lot was approximately 1800 feet east of the spill and 1100 feet east of the culvert. Some workers said they smelled the acrylonitrile and experienced exposure symptoms on February 23 and 24, the first and second days after the accident, in addition to February 22, 1977.

In this context, Hebel was ordered to patrol the derailment site from 4:00 P.M., February 23, 1977 to 4:00 A.M., February 24, 1977. His notebook reflects he was to guard a load of "scrap press wood". ² Hebel completed his shift and subsequently he began to experience dizziness, nausea, headaches, difficulty breathing, an impaired sense of smell and a loss of appetite. These conditions persisted and Hebel ultimately experienced weakness in and partial loss of motor control of his legs.

Hebel sought medical care in November, 1978, and was examined by an occupational pulmonary disease specialist, Dr. Brooks. By this time, Hebel had undergone bypass surgery on his left leg and had quit working. Dr. Brooks concluded that Hebel was suffering from peripheral vascular disease, in part related to diabetes, however he also concluded Hebel was suffering a toxic reaction from his exposure to acrylonitrile. In Dr. Brooks' opinion, Hebel's exposure to acrylonitrile had aggravated and accelerated his condition.

On October 17, 1978, Hebel filed his complaint against Conrail, alleging that Conrail was negligent because: 1) it knew or should have known of the dangers attendant to the acrylonitrile spill; 2) it failed to warn him; and 3) because it failed to provide safety equipment. The complaint was filed pursuant to the Federal Employers' Liability Act (FELA) 45 U.S.C. Sec. 51 et seq. ³ 45 U.S.C. Sec. 51 states:

Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States of Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, 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.

Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantial, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.

(Emphasis added).

Conrail filed a motion in limine to prevent the plaintiff from introducing evidence it had violated regulations promulgated pursuant to the Occupational Safety and Health Act (OSHA) 29 U.S.C. Sec. 651 et seq. The motion in limine was predicated on the argument that 29 U.S.C. Sec. 653, as interpreted in Bertholf v. Burlington Northern Railroad (E.D.Wash.1975) 402 F.Supp. 171, exempted railroads from OSHA regulations.

Underlying the issue of whether OSHA regulations applied to Conrail was the issue of what impact their application would have on the plaintiff's burden of proving Conrail's negligence pursuant to the FELA. Thus, in its motion in limine, Conrail argued that under the FELA if a railroad violates a federal safety statute a "plaintiff does not have to prove that defendant was negligent". However, Conrail relied on Bertholf, supra and also argued that the only federal safety statutes subject to this rule are the Safety Appliance Acts, 45 U.S.C. Sec. 1 et seq. and the Boiler Inspection Act, 45 U.S.C. Sec. 22 et seq. Conrail therefore, concluded that its violation of an OSHA regulation was not a violation of a federal safety statute for purposes of determining its negligence under the FELA and for determining the plaintiff's burden of proof. Plaintiff argued that evidence of OSHA violations was proper to prove negligence even if the evidence was inadmissible to prove Conrail was strictly liable for Hebel's injuries. On appeal, plaintiff argues the evidence is proper to prove negligence per se or strict liability.

The trial court granted Conrail's motion in limine and sustained Conrail's objections to plaintiff's attempts to refer to OSHA standards at trial. Plaintiff challenges these rulings on appeal and the described issues are now before us.

When reviewing a negative judgment, we may only reverse the trial court's decision if it is contrary to law. Ind. State Highway Com'n. v. Ziliak, (1981) Ind.App., 428 N.E.2d 275; Reynolds v. Meehan, (1978) Ind.App. 375 N.E.2d 1119. The issues before us are legal issues; we find that the trial court erred by excluding evidence concerning Conrail's violation of OSHA regulations and therefore, the trial court's judgment is contrary to law.

We first note that Bertholf, supra, the case on which Conrail bases its argument, is not analogous to the case at bar. In Bertholf, the question was whether the plaintiff's contributory negligence was an issue where the defendant had violated an OSHA regulation pertaining to equipment inspections. The court was required to construe 45 U.S.C. Sec. 53 which provides for comparative negligence under the FELA unless the defendant's violation "of any statute enacted for the safety of employees contributed to the injury or death of such employees", in which case the railroad is liable for all the plaintiff's damages. The Bertholf court interpreted this language as applying only to violations of the Safety Appliance Acts and the ...