Page v. Nat'l R.R. Passenger Corp..

• Decision Date: 02 September 2011
• Docket Number: No. 01959,2009.,Sept. Term,01959
• Citation: 200 Md.App. 463,28 A.3d 60
• Parties: Donzel M. PAGEv.NATIONAL RAILROAD PASSENGER CORPORATION, et al.
• Court: Court of Special Appeals of Maryland

200 Md.App. 463

28 A.3d 60

Donzel M. PAGE

v.NATIONAL RAILROAD PASSENGER CORPORATION, et al.

No. 01959

Sept. Term

2009.

Court of Special Appeals of Maryland.

Sept. 2, 2011.

Randall E. Appleton, Virginia Beach, VA & David M. Kopstein, Seabrook, MD (Kopstein & Perilman, Shapiro, Cooper, Lewis & Appleton PC, on the brief), for appellant.Stephen B. Caplis (J. Chrispher Nosher, Justin M. Cuniff, Setliff, Turner & Holland, PC, on the brief), Baltimore, MD, for appellee.

Panel: ^* HOLLANDER, ELLEN L., ZARNOCH and KEHOE, JJ.KEHOE, J.

In the taxonomy of the law, the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq., is a platypus. Intended to provide a remedy for injured railroad workers, the FELA “hovers ambivalently between workers' compensation law and the common law of negligence. It is neither, but it partakes of characteristics of both.” CSX v. Miller, 159 Md.App. 123, 129, 858 A.2d 1025 (2004). This case calls us to consider the roles that two basic concepts of negligence law, res ipsa loquitur and proximate cause, play in FELA claims.

Donzel M. Page filed suit against his former employer, the National Railroad Passenger Corporation (“Amtrak”), seeking recompense for a work-related injury. The Circuit Court for Baltimore City granted summary judgment in Amtrak's favor. Page has appealed and presents two issues, which we have consolidated and reworded:

In an action based upon the Federal Employers' Liability Act, did the circuit court err in granting summary judgment in favor of Amtrak on the basis that Page presented no evidence that Amtrak breached any duty to him and that any negligence on Amtrak's part was not the proximate cause of his injuries?

We conclude that Page presented evidence, albeit circumstantial, from which a fact-finder could reasonably infer that Amtrak was negligent and that physical injury was a foreseeable result of that negligence. While the relationship between Amtrak's negligence and Page's injuries may not satisfy the common law requirements for proximate causation, a plaintiff in a FELA action need only prove that “ ‘employer negligence played any part, even the slightest, in producing the injury....’ ” CSX Transp. v. McBride, –––U.S. ––––, 131 S.Ct. 2630, 2638 n. 2, 180 L.Ed.2d 637 (2011) (quoting Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957)). Page has met this unexacting threshold. Therefore, we will vacate the judgment entered on Amtrak's behalf and remand this case to the circuit court for trial.

Factual and Procedural Background

We set out the facts in the light most favorable to Page, as the non-moving party to the motion for summary judgment.¹ See Reiter v. Pneumo Abex, 417 Md. 57, 67, 8 A.3d 725 (2010). We first look to Page's deposition which provides the following information.

On February 22, 2007, Page, a police officer employed by Amtrak, was on duty near the information desk in Pennsylvania Station in Baltimore, Maryland. At approximately 5:00 pm, Page was approached by an Amtrak passenger who informed Page that a baggage cart was lying on a track adjacent to a passenger platform on the lower level of the terminal. Page's duties included removing obstructions from the railroad tracks within the terminal. Page, accompanied by Charles Harris, an Amtrak customer service employee (a “Red Cap”), went to the passenger platform to investigate.

At about the time they reached the lower level of the terminal, Page and Harris learned that there was an inbound train scheduled to arrive on the track that was blocked by the baggage cart. Harris made an emergency call on his radio to the train's engineer and the train stopped approximately 60 feet from the cart.

When Page arrived on the passenger platform, he observed that the train was unable to unload its passengers because of the track blockage. Page walked to the point of the platform closest to the cart, sat down on its edge, ² and dropped onto the ballast adjacent to the track. In his deposition, he estimated that his feet were “between four and five feet” above the ballast when he dropped down. Page landed “a little off balance” and felt pain in his left hip. He pushed the cart off the tracks and walked back along the tracks to a set of stairs leading up to the platform. The train then pulled into position and disembarked its passengers onto the platform.

The layout of the platform was such that there were stairs at one end of the platform and a ramp at the other to provide access to the track. The stairs and the ramp were each about 100 yards from Page's location when he dropped off the platform. Page testified that he did not take the time to use the stairs or the ramp because he “wanted to get the patrons off the train in a timely fashion” to avoid a train delay.

At the end of his shift, Page filed a report about the incident. At that time, he declined medical attention. By the following day, Page's symptoms had worsened and he sought medical treatment. His physical condition continued to deteriorate and, as a result of the injury, Page eventually became unable to perform his duties for Amtrak.

When deposed, Harris, the Red Cap, stated that he had been employed as a Red Cap by Amtrak for 26 years. When describing the carts, Harris explained that they are “typical push cart[s]” ³ that have signs on them indicating that they are for Amtrak employee use only. Most of the carts have a cable that Amtrak employees could wrap around fixed structures on the platform or within the building to keep the public from using the carts. Harris stated that the use of, and responsibility for, the baggage carts is restricted to Amtrak employees. Typically the carts are used by Red Caps or baggage handlers to assist in luggage handling. However, all Amtrak employees are permitted to use the carts. While there is no formal or uniform procedure for monitoring the carts, Amtrak's custom is that the employee using the cart is responsible for monitoring the cart. It is against Amtrak practice and policy to leave carts unattended on passenger platforms. Harris stated that, while Amtrak does not permit non-employees to use baggage carts, “people being people, a lot [of] time[ ] they do take carts and they do use carts.” Harris testified that carts end up on the tracks at Pennsylvania Station “maybe three to four times a year.” ⁴

On October 10, 2008, Page filed a complaint in the Circuit Court for Baltimore City against Amtrak under the provisions of the FELA. In his complaint, Page asserted that Amtrak negligently failed to provide a reasonably safe workplace and that this negligence was a cause of his injuries.

After the conclusion of written discovery and depositions, Amtrak filed a motion for summary judgment based on two grounds. First, Amtrak argued that, in order to recover, a “FELA plaintiff is required to prove traditional common law elements of negligence: breach, foreseeability, and causation.” Amtrak asserted that, because Page had no direct evidence as to how the baggage cart happened upon the track, Page had no evidence of Amtrak's breach of duty. In addition, Amtrak argued that, because “Page's decision to jump to the tracks clearly constitutes contribution or voluntary activity ... the doctrine of res ipsa loquitur is not applicable in this case.” Second, Amtrak contended that “Page's careless choice to jump to the tracks, instead of using a safe route, was the sole proximate cause of his injury.”

In response, Page argued that, under the FELA, Amtrak was liable if any negligence on its part played any role in producing his injuries. The FELA requires that employers take reasonable precautions to provide employees with a safe workplace. According to Page, Amtrak's failure to take reasonable precautions to manage the baggage carts resulted in a baggage cart lying on a live track, thereby creating an unsafe workplace. Because Page injured himself while performing his duty of retrieving the cart from the track, Amtrak's negligence played some role in causing his injuries. Page further notes that his alleged contributory negligence, if any, is not a bar to recovery under the FELA. Page concluded that, as soon as he presented evidence of Amtrak's duty, Amtrak's breach of that duty and his own resulting injuries, a jury issue was created under the FELA and summary judgment was inappropriate.

After a hearing on September 23, 2009, the circuit court granted Amtrak's motion for summary judgment and entered final judgment in favor of Amtrak. The court stated in a written order:

There is no evidence that negligence by the Defendant was a cause of Plaintiff's injuries because there is no evidence that Defendant breached any duty or that any breach was the cause of Plaintiff's injuries. The doctrine of res ipsa loquitur does not apply because Plaintiff was not without fault in causing his injuries. There is no evidence that Defendant failed to provide Plaintiff with a reasonably safe place to work or that his fellow employees were negligent in that they failed to adequately secure the baggage cart which Plaintiff was attempting to retrieve. There is no evidence that an appearance of the baggage cart on the tracks was the actual and proximate cause of Plaintiff's injuries.

I. The FELA

In order to put the parties' contentions into proper focus, we will briefly review the pertinent provisions of the FELA. This is well-ploughed ground in Maryland because the FELA and related statutes ⁵ have been the subject of several recent decisions by this Court and the Court of Appeals. See Collins v. Nat'l R.R., 417 Md. 217, 230–41, 9 A.3d 56 (2010), cert dismissed, ––– U.S. ––––, 131 S.Ct. 1811, 179 L.Ed.2d 673 (2011); Haischer, 381 Md. at 125–28, 848 A.2d 620 (interpreting the Federal Boiler Inspection Act); CSX v. Bickerstaff, 187 Md.App. 187, 206–08, 978 A.2d 760 (2009); Norfolk S. Railway Corp. v. Tiller, 179 Md.App. 318, 322–26, 944 A.2d 1272 (2008); and CSX v. Miller, 159 Md.App. 123,...