Moore v. Chesapeake & O. Ry. Co., s. 80-1586

• Decision Date: 29 May 1981
• Docket Number: Nos. 80-1586,80-1587,s. 80-1586
• Citation: 649 F.2d 1004
• Parties: Sandra G. MOORE, Plaintiff, v. The CHESAPEAKE & OHIO RAILWAY COMPANY, a corporation, Appellee, v. ROLLYSON'S CATERING SERVICE, INC., a corporation, Appellant. Sandra G. MOORE, Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a corporation, Appellant, v. ROLLYSON'S CATERING SERVICE, INC., a corporation, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1004

649 F.2d 1004

Sandra G. MOORE, Plaintiff, v. The CHESAPEAKE & OHIO RAILWAY COMPANY, a corporation, Appellee, v. ROLLYSON'S CATERING SERVICE, INC., a corporation, Appellant.

Sandra G. MOORE, Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a corporation, Appellant, v. ROLLYSON'S CATERING SERVICE, INC., a corporation, Defendant.

Nos. 80-1586, 80-1587.

United States Court of Appeals Fourth Circuit.

Argued March 3, 1981.

Decided May 29, 1981.

Norman Fenstermaker, Huntington, W.Va. (Jenkins, Fenstermaker, Krieger, Kayes & Farrell, Huntington, W.Va., on brief), for appellant in No. 1586.

Fred Adkins, Huntington, W.Va. (Donald G. Powers, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, W.Va., on brief), for appellee in No. 80-1586.

Norman Fenstermaker and Fred Adkins, Huntington, W.Va. (Jenkins, Fenstermaker, Krieger, Kayes & Farrell, Donald G. Powers, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, W.Va., on brief), for appellant in No. 1587.

Charles Collins, Roseville, Minn. (Donald L. Rudquist, Deparcq, Anderson, Perl, Hunegs & Rudquist, Minneapolis, Minn., Lawrence J. Lewis, Vinson, Meeker, Lewis, Peoples & Pettit, Huntington, W.Va., on brief), for appellee in No. 80-1587.

Before BUTZNER, PHILLIPS and MURNAGHAN, Circuit Judges.

MURNAGHAN, Circuit Judge:

Sandra G. Moore, a mail clerk employed by the Chesapeake and Ohio Railway Co. at its Huntington, West Virginia headquarters, was injured while eating lunch in a cafeteria located in the headquarters building and operated by Rollyson's Catering Service, Inc. The injury occurred when Moore slipped on a pat of butter as she carried her tray from the serving line to a condiment table. Although Moore did not fall, she twisted her back and spine to the extent that she required surgery and suffered permanent restrictions of mobility.

Moore brought suit against the C&O under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., seeking $300,000 damages for past and future medical expenses, loss of future earning capacity, and pain and suffering. The suit alleged that the C&O breached its duty under the FELA to provide a reasonably safe place to work. The suit proceeded on two theories: first, the C&O failed adequately to supervise operation of the cafeteria by Rollyson's, specifically failing to provide and enforce adequate rules and safety standards; second, Rollyson's failed to maintain the cafeteria in a safe condition, for which the C&O was liable as the employer or principal of Rollyson's.

The C&O filed a third-party complaint against Rollyson's, alleging that the written agreement between the C&O and Rollyson's for operation of the cafeteria required Rollyson's to indemnify the C&O for any damages awarded to Moore, and attorneys' fees. At trial, the jury found that the C&O on its own, and, independently, Rollyson's, on its own, was each guilty of negligence that proximately caused the injury to Moore. The jury also found Moore guilty of contributory negligence, and awarded damages of $150,000. ¹ Following the verdict, the court ruled that the indemnification agreement between the C&O and Rollyson's covered the damages awarded Moore. The court ordered Rollyson's to indemnify the C&O for the entire amount, and to reimburse the C&O for reasonable attorneys' fees and expenses incurred in defense of the suit, 493 F.Supp. 1252 (D.C.).

Consolidated here are the appeals of the C&O and Rollyson's. In 80-1587, the C&O ² challenges its liability under the FELA. First, the C&O argues that Rollyson's negligence cannot be imputed to the C&O because Rollyson's was not an agent of the C&O. Second, the C&O argues that the FELA is inapplicable as a matter of law because the cafeteria was not a workplace and Moore was not within the scope of her employment at the time of her injury. The C&O also challenges two evidentiary rulings by the trial court.

In 80-1586, Rollyson's appeals the trial court's order that it indemnify the C&O. We find no merit in any of the challenges. We affirm the jury verdict, and the order that Rollyson's indemnify the C&O.

1. The C&O's Liability under the FELA for Rollyson's Negligence

The trial court instructed the jury that, if Moore's injury was caused by the negligent failure of Rollyson's to maintain safe conditions in the cafeteria, the negligence could be imputed to the C&O under the FELA. ³ The C&O argues that as a matter of law, Rollyson's negligence cannot be imputed to the C&O, because Rollyson's was neither an agent of the C&O nor a "constructive agent" under the doctrine of Sinkler v. Missouri Pacific R.R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958). In Sinkler the Supreme Court held that an independent contractor is an "agent" for purposes of establishing an employer's liability under the FELA if the contractor performs "operational activities" of the employer. 356 U.S. at 331-32, 78 S.Ct. at 762-63.

While the argument of the C&O is not without force, we find it unnecessary to determine whether Rollyson's negligence properly could be imputed to the C&O, because the C&O's liability under the FELA does not depend solely on the nature of its relationship with Rollyson's. The trial court further instructed the jury that, as part of the C&O's duty to provide a safe workplace, the C&O had a duty to prescribe rules and regulations for the safe operation of the cafeteria, and to require Rollyson's employees and agents to exercise reasonable care in operating the cafeteria. The court also required the jury to answer four special questions in reaching its verdict, the first of which asked: "Totally independent of any negligence of which Rollyson's Catering Service, Inc. may have been guilty, was the Chesapeake and Ohio Railway Company guilty of any negligence which proximately caused, or contributed in any degree to, the accident and injuries about which the plaintiff now complains?" The jury answered affirmatively.

From the court's instruction and the jury's answer to the first special question, it seems clear that the jury found that the C&O failed to provide and enforce adequate rules and regulations for the safe operation of the cafeteria. ⁴ The C&O has not appealed either the propriety of the court's instruction, or the accuracy of the jury's finding. ⁵ It is unnecessary, therefore, to pursue the question of whether the C&O, derivatively, could have been held responsible for the negligence of Rollyson's. The direct liability of the C&O under the FELA for the injuries to Moore has been established.

2. Scope of Employment

A more difficult question is whether the cafeteria was a workplace and Moore was within the scope of her employment at the time of her injury. The FELA protects employees only if they are injured within the scope of employment. See, e. g., Getty v. Boston and Maine Corp., 505 F.2d 1226 (1st Cir. 1974). The C&O acknowledges that an employee injured during a temporary and necessary interruption of work such as a rest break, a trip to a drinking fountain or restroom remain within the scope of employment and within the protection of the Act. Several cases have held, or stated in dictum, that an employee injured while eating lunch on the employer's premises also remains within the scope of employment. See Virginian Ry. Co. v. Early, 130 F.2d 548 (4th Cir. 1942); Baltimore & O. R.R. Co. v. Kast, 299 F. 419 (6th Cir. 1924).

The C&O argues that the facts here present two significant distinctions from the lunch cases. First, the employees in the lunch cases, in a manner designed to benefit the employer, were required to eat lunch on the premises. Moore was free to eat lunch in the cafeteria, or to leave the building and eat elsewhere, at a place of her choice. The C&O contends that the cafeteria was provided merely as a convenience for the employees, not for the benefit of the employer. Second, in the cases relied on by Moore, the employees were injured on premises controlled by the employer. Moore, although on premises owned by the C&O, was injured in a cafeteria operated by Rollyson's.

The C&O relies on two First Circuit cases to demonstrate the significance of the distinctions it endeavors to make. In Metropolitan Coal Co. v. Johnson, 265 F.2d 173 (1st Cir. 1959), a railroad employee was injured as he commuted from home to work on his employer's regularly scheduled commuter train. The court held that the employee was not within the scope of his employment at the time of injury, even though the employee was on the employer's premises, and had been given a pass to ride the train. The court said that

although the plaintiff was on the carrier's premises when he was injured, he was not on a part of the premises which it was necessary for him to use to reach his work. He was not required to go to work on the defendant's passenger train. He could have taken any one of a number of other routes, trains or means of transportation to go from his home to his work (T)he plaintiff's employment as a flagman on a freight train did not subject him to any peculiar or abnormal danger while he was riding to work on one of his employer's passenger trains. On that train he was exposed to no other or greater hazard than any other passenger.

265 F.2d at 178.

The First Circuit refined the meaning of "employer compulsion" in Getty v. Boston and Maine Corp., 505 F.2d 1226 (1st Cir. 1974). A railroad employee who had slipped in a parking lot serving the railroad station as he walked to board a commuter train to work, argued that he was within the scope of employment because a heavy snowstorm made other forms of transportation impractical and in effect compelled him to take the train to work. The court held, however, that there was no "employer compulsion":

The sort of necessity referred to in Metropolitan Coal must, we think, stem more directly from a specific requirement of his job or a specific understanding as to his mode of travel. There will always be circumstances outside the employer's...