Kelson v. Central of Georgia R. Co.

• Citation: 234 Ga. App. 200,505 S.E.2d 803
• Decision Date: 17 August 1998
• Docket Number: No. A98A1738.,A98A1738.
• Parties: KELSON v. CENTRAL OF GEORGIA RAILROAD COMPANY.
• Court: United States Court of Appeals (Georgia)

505 S.E.2d 803

234 Ga. App. 200

KELSON v. CENTRAL OF GEORGIA RAILROAD COMPANY.

No. A98A1738.

Court of Appeals of Georgia.

August 17, 1998.

Reconsideration Denied September 2, 1998.

Brimberry, Kaplan & Brimberry, Jerry W. Brimberry, Albany, Burge & Wettermark, James R. Holland II, Birmingham, AL, for appellant.

Watson, Spence, Lowe & Chambless, Stephen S. Goss, Albany, for appellee. ELDRIDGE, Judge.

Plaintiff-appellant Philip Kelson appeals from the grant of summary judgment to defendant-appellee Central of Georgia Railroad Company ("Central Railroad") on claims he pursued under the Federal Employers' Liability Act ("FELA") and the Federal Safety Appliance Act ("FSAA"). We affirm.

The evidence of record includes affidavits of Central Railroad employees, accompanying business records, photographs, and Kelson's affidavit and deposition. Viewing such evidence in Kelson's favor, it shows that, in 1995, Kelson was 55 years old and had been an employee of Central Railroad for approximately 35 years. He worked as a conductor/foreman since 1968 and was responsible for overseeing coupling and switching operations.

On March 9, 1995, the train on which Kelson was working traveled to Dougherty County to pick up three tank cars from Bob's Candy Company. As the train maneuvered to the point where the tank cars were waiting, Kelson rode on the side ladder of the last train car, i.e., a refrigerated boxcar that was to be coupled to the tank cars. He deposed that he was not supposed to ride on the end ladder of the boxcar because "[i]t's against the rule[s]" of Central Railroad to ride on the end ladder during a coupling (or "shove") operation. Kelson also stated that, before the train began moving, he had turned off the boxcar's hand brake. During the coupling operation, Kelson was unable to see the engineer operating the train and communicated with him through the use of a walkie-talkie. As the train backed up toward the tank cars, Kelson communicated the distance between the cars to the engineer.

When the cars were "extremely close to coupling," i.e., between one and five feet apart, Kelson stated that he moved from the side ladder to the end ladder of the boxcar, placing himself directly between the coupling train cars. In the process, Kelson moved both of his feet onto the end ladder, but his right hand still was holding onto the side ladder; Kelson's left hand held the walkie-talkie microphone. Kelson admitted that, within seconds prior to the imminent coupling operation, he let go of the side ladder with his right hand with the intention of grabbing the end ladder with the same hand. Unfortunately, he missed the ladder and began to fall backward. According to Kelson's affidavit and deposition testimony, that caused him to jump onto the sliding center sill cushion between the trains at the very moment the trains were coupling. His left foot was caught between the trains and crushed. Kelson tried to use his walkie-talkie to tell the engineer to move the train away from the tank cars, but he mistakenly directed the engineer to move closer, thereby increasing the pressure on his foot. After Kelson dislodged his foot, he was treated at the scene and then transported by ambulance to a regional hospital.

Two employees of Central Railroad inspected the refrigerated boxcar and the adjoining tank car within hours of the incident and found no defects or missing equipment. According to their affidavits, they examined the "sliding sill ... and found no defects," and determined that the "brakes, ladders, grab irons, hand holds, and sill steps ... were found to be in good condition with no foreign substance found thereon." They also determined that the boxcar on which Kelson was riding had a high hand brake which was in good working order.

On May 11, 1995, Kelson filed suit against Central Railroad in the Superior Court of Dougherty County under FELA, 45 USC § 51 et seq., asserting that Central Railroad's negligence caused his injuries. In addition, the complaint claimed that Central Railroad violated the FSAA, 49 USC § 20301 et seq., by failing to ensure that the boxcar was equipped with statutorily mandated safety equipment which caused, in whole or in part, Kelson's injuries. On June 28, 1996, Central Railroad moved for summary judgment, asserting that Kelson's negligence in moving to the end of the boxcar immediately prior to coupling was the sole proximate cause of his injuries, thereby relieving Central Railroad of liability under both the FELA and FSAA. The trial court agreed and granted the motion on March 23, 1998. It is from the trial court's order that Kelson appeals. Held:

1. In his first enumeration, Kelson asserts that the trial court erred in granting summary judgment to Central Railroad, alleging that a factual issue existed regarding whether the railroad was negligent in failing to provide a reasonably safe place to work, so that it was liable under FELA. Under FELA, the railroad company is liable to any employee who suffers an injury "resulting in whole or in part from the negligence of ... such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars [or] engines, ...." 45 USC § 51; see also 49 USC § 20301 et seq.¹ Further, "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 [the] employee." 45 USC § 53. However, "[i]f a violation of the [FSAA] results in injury to a railroad employee, the negligence of the employee is not relevant and does not reduce his recovery unless his negligence can be said to be the sole cause of his injury." (Citation omitted; emphasis supplied.) Central of Ga. R. Co. v. Mock, 231 Ga.App. 586, 588(2), 499 S.E.2d 673 (1998). See also 45 USC § 53; Beimert v. Burlington Northern, 726 F.2d 412, 414, n. 3 (8th Cir.1984).

(a) "To prevail on [an] FELA [negligence] claim, a plaintiff must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation." (Citations and punctuation omitted.) Bagley v. CSX Transp., 219 Ga.App. 544, 545, 465 S.E.2d 706 (1995). See also Adams v. CSX Transp., 899 F.2d 536, 539 (6th Cir.1990); Green v. River Terminal R. Co., 763 F.2d 805, 808 (6th Cir.1985). "The basis of [the employer's] liability is [its] negligence, not the fact that injuries occur." (Citations and punctuation omitted.) Consolidated R. Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). See also Southern R. Co. v. Mays, 192 Va. 68, 75, 63 S.E.2d 720, 724 (1951) ("negligence on the part of [the] defendant may not be presumed or inferred from mere proof of an accident"). The FELA is not a no-fault workers' compensation statute, nor does it make the employer an insurer of its employees. Consolidated R. Corp. v. Gottshall, supra at 543, 114 S.Ct. 2396; Inman v. Baltimore, etc., R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959); Jordan v. Southern R. Co., 970 F.2d 1350, 1352 (4th Cir.1992); Radford v. Seaboard, etc., R. Co., 122 Ga.App. 763, 764, 178 S.E.2d 774 (1970).

However, "[t]he case law is clear that under an FELA action, the standards of liability for negligence are significantly broader than in ordinary common law negligence actions. [Cit.]" Duron v. Western R. Builders Corp., 856 F.Supp. 1538, 1540 (D.N.M.1994). "Slight negligence, necessary to support an FELA action, is defined as `a failure to exercise great care,' and that burden of proof, obviously, is much less than the burden required to sustain recovery in ordinary negligence actions." (Citation omitted; emphasis in original.) Boeing Co. v. Shipman, 411 F.2d 365, 371(4) (5th Cir.1969). See also Ackley v. Chicago, etc., Transp. Co., 820 F.2d 263, 267(3) (8th Cir.1987). "The FELA is meant to provide a broad remedial framework for railroad workers and, in light of that purpose, is to be liberally construed in their favor. [Cit.]" Lisek v. Norfolk, etc., R. Co., 30 F.3d 823, 831(7) (7th Cir.1994). See also Atchison, etc., R. Co. v. Buell, 480 U.S. 557, 562, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987). "In other words, `trial by jury is part of the remedy' in FELA cases." (Citations omitted.) Boeing Co. v. Shipman, supra, 411 F.2d at 371(5). See also Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957).

(b) Even so, as part of his prima facie case, Kelson was required to show not only that Central Railroad was negligent, but that such negligence was the proximate cause of his injuries. Powell v. Waters, 55 Ga.App. 307, 314, 190 S.E. 615 (1937); see also Brady v. Southern, R. Co., 320 U.S. 476, 483-484, 64 S.Ct. 232, 88 L.Ed. 239 (1943); Green v. River Terminal R. Co., supra, 763 F.2d at 810; Wolfe v. Henwood, 162 F.2d 998, 1001 (8th Cir.1947); Black v. Ga. Southern, etc., R. Co., 202 Ga.App. 805, 806, 415 S.E.2d 705 (1992); Radford v. Seaboard, etc., R. Co., supra at 764, 178 S.E.2d 774. "The test for minimally adequate proof of causation is `whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury.' But although a plaintiff need not make a showing that the employer's negligence was the sole cause, there must be a sufficient showing (i.e., more than a possibility ) that a causal relation existed." (Citation omitted; emphasis in original and supplied.) Moody v. Maine Central R. Co., 823 F.2d 693, 695 (1st Cir.1987). See also Rogers v. Missouri Pacific R. Co., supra at 508, 77 S.Ct. 443; Boeing Co. v. Shipman, supra, 411 F.2d at 374-375 (holding that a "mere scintilla of evidence" does not create a jury question); CSX Transp. v. Monhollen, 229 Ga.App. 516, 522(3), 494 S.E.2d 202 (1997).

On a defense motion for summary judgment, if the defendant is able to demonstrate the absence of any evidence supporting an essential element of the...