Pappalardo v. Long Is. R.R.

• Decision Date: 09 February 2006
• Docket Number: 744/01.
• Parties: RENATA PAPPALARDO, as Executrix of ANTONINO PAPPALARDO, Deceased, Plaintiff, v. LONG ISLAND RAILROAD COMPANY et al., Defendants.
• Court: New York Supreme Court

11 Misc.3d 744

813 N.Y.S.2d 883

2006 NY Slip Op 26044

RENATA PAPPALARDO, as Executrix of ANTONINO PAPPALARDO, Deceased, Plaintiff, v. LONG ISLAND RAILROAD COMPANY et al., Defendants.

744/01.

Supreme Court, Kings County.

February 9, 2006.

Landman Corsi Ballantine & Ford PC., Newark, New Jersey, for defendants.

Paul Garner, Brewster, for plaintiff.

OPINION OF THE COURT

ARTHUR M. SCHACK, J.

In this action, originally for negligence, and later amended to wrongful death, pursuant to the Federal Employers' Liability Act (45 USC § 51 et seq. [FELA]), plaintiff alleges that defendants failed to provide decedent with a safe work environment and that defendants' unsafe work environment caused decedent's demise (motion, exhibit F, plaintiff's bill of particulars). Plaintiff claims, in the bill of particulars, that decedent, a retired employee of defendant Long Island Railroad (LIRR),

"was exposed to various toxic substances resulting in pulmonary disorders and liver cancer, including but not limited to asbestos, diesel fumes, burning and welding fumes, various dusts, cleaning solvents, de-greasing agents, aliphatic hydrocarbons, silicates, butyl acetone, tolune, acolated naptha, phoxyethylamine, trichloroethylene, perchloroethylene, carbon tetrachloride, mineral spirits, benzene, and herbicides on numerous occasions during the course of his employment from December, 1967 through May, 1984 [sic]."

Prior to working for defendant LIRR as a car repairman and welder, decedent performed related work for the Erie-Lackawana Railroad or its predecessors from April 1951 to November 1967 (motion, exhibit F, plaintiff's bill of particulars). Decedent, in his examination before trial (motion, exhibit N, at 59-60), admitted to smoking about one pack of cigarettes a day for 15 years. Decedent was diagnosed with hepatitis C and cirrhosis of the liver in 1994, and was diagnosed with liver cancer in 1997. Mr. Pappalardo died on March 8, 2002 (motion, exhibit J, death certificate).

Defendants move to dismiss the Metropolitan Transportation Authority (MTA) as an improper defendant upon the grounds that the MTA is shielded from a FELA action pursuant to Public Authorities Law § 1266 (5) and for summary judgment and dismissal of the action on the grounds that there is no competent evidence that defendant LIRR failed to provide decedent with a reasonably safe work environment. Plaintiff, as executrix of decedent's estate, cross-moves for partial summary judgment on the issue of liability, claiming that defendants' failure to provide a safe work environment contributed to Mr. Pappalardo's death.

For the reasons to follow, that branch of defendants' motion to dismiss the MTA from the action, pursuant to Public Authorities Law § 1266 (5), is denied (counsel for LIRR and MTA continually refers to this subdivision of the Public Authorities Law as section 1266 [c], a subdivision which does not exist; the court will assume from the arguments of defendants' counsel that counsel means section 1266 [5], and admonishes defendants' counsel to prepare their motion papers correctly and proofread their papers before submission to this or any other court). For historical reasons, FELA applies to the LIRR, a railroad held to be in interstate commerce. FELA, as will be explained below, supercedes the MTA's use of Public Authorities Law § 1266 (5) as a shield from lawsuits by injured Metro-North Railroad and LIRR employees. Therefore, defendant MTA, the owner and operator of defendant LIRR since 1966, will not be dismissed from the instant action.

That branch of defendants' motion for summary judgment and dismissal of the instant action, as well as plaintiff's cross motion for partial summary judgment, is denied because triable issues of fact exist.

MTA is a Proper Defendant Pursuant to FELA

When still alive, decedent commenced the instant action for violation of FELA. Subsequently, decedent's executrix amended the complaint to continue the case as a FELA wrongful death action. Plaintiff alleges that: decedent contracted occupational diseases and conditions as a result of his exposure to hazardous substances while an employee of the LIRR; the LIRR did not provide decedent with proper protective equipment warnings, and information as protection against these exposures; and defendants' failure to consider and provide for the safety of its decedent employee was a violation of the statutory duties imposed by FELA. FELA provides at 45 USC § 51 that:

"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 or 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 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."

FELA was enacted in 1908, during the Progressive Era, to address the large number of work-related injuries in the railroad industry. In Kernan v. American Dredging Co. (355 US 426, 431-432 [1958]), the Court stated that:

"[I]t came to be recognized that . . . the industrial employer had a special responsibility toward his workers, who were daily exposed to the risks of the business and who were largely helpless to provide adequately for their own safety. Therefore, as industry and commerce became sufficiently strong to bear the burden, the law, the reflection of an evolving public policy, came to favor compensation of employees and their dependents for the losses occasioned by the inevitable deaths and injuries of industrial employment, thus shifting to industry the `human overhead' of doing business. For most industries this change has been embodied in Workmen's Compensation Acts. In the railroad and shipping industries, however, the FELA and Jones Act provide the framework for determining liability for industrial accidents. But instead of a detailed statute codifying common-law principles, Congress saw fit to enact a statute of the most general terms, thus leaving in large measure to the courts the duty of fashioning remedies for injured employees in a manner analogous to the development of tort remedies at common law. But it is clear that the general congressional intent was to provide liberal recovery for injured workers." (See Atchison, T. & S. F. Ry. Co. v. Buell, 480 US 557 [1987]; Rogers v. Missouri Pacific R. Co., 352 US 500 [1957]; Urie v. Thompson, 337 US 163 [1948].)

Justice William O. Douglas, in analyzing FELA, observed in his concurring opinion in Wilkerson v. McCarthy (336 US 53, 68 [1949]) that:

"The Federal Employers' Liability Act was designed to put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations . . . The purpose of the Act was to change that strict rule of liability, to lift from employees the `prodigious burden' of personal injuries which that system had placed upon them, and to relieve men `who by the exigencies and necessities of life are bound to labor' from the risks and hazards that could be avoided or lessened `by the exercise of proper care on the part of the employer in providing safe and proper machinery and equipment with which the employee does his work . . . [n]1 H. R. Rep. No. 1386, 60th Cong., 1st Sess. 2 (1908)."

FELA supercedes the common law and state laws, constitutional and statutory, relating to the liability of railroads for injury to employees in interstate commerce, and the FELA remedy is exclusive. (South Buffalo R. Co. v. Ahern, 344 US 367 [1953]; Chicago, R. I. & P. R. Co. v. Schendel, 270 US 611 [1926].) FELA cases tried in state courts use state procedural rules, but the substantive law is federal. (St. Louis Southwestern R. Co. v. Dickerson, 470 US 409 [1985].) To recover pursuant to FELA, a plaintiff, as outlined in Fowler v. Seaboard Coastline R.R. Co. (638 F2d 17, 19 [5th Cir 1981]), must prove

"(1) that defendants are common carriers by railroad engaged in interstate commerce; (2) that the injured was employed by the defendant with duties furthering such commerce; (3) that the injuries were sustained while claimant was so employed; and (4) that the injuries were the result of negligence of defendant company. 45 U.S.C. s 51."

Defendants rely upon Noonan v. Long Is. R.R. (158 AD2d 392 [1st Dept 1990]) to argue that defendant LIRR, a public benefit corporation and corporate subsidiary of defendant MTA, is shielded from the instant action by Public Authorities Law § 1266 (5). Public Authorities Law § 1266 (5) specifies that the MTA's subsidiary corporations are distinct entities. Each is subject to suit and each is responsible for maintenance and repair of their own facilities, not the MTA. Further, Public Authorities Law § 1266 (5) states that "[t]he employees of any such subsidiary corporation, except those who are also employees of the [MTA], shall not be deemed employees of the [MTA]." In Noonan, plaintiff sued both the MTA and the LIRR for personal injury suffered by tripping over a raised railroad spike when crossing LIRR tracks. Noonan was clearly not a FELA action and the Court held (at 393) that "in this action which alleges negligence in the improper operation, maintenance and control of the railroad facilities owned by the LIRR, the MTA is not a proper party."

Greene v. Long Is. R.R. Co. (99 F Supp 2d 268 [US Dist Ct, ED NY 2000], affd 280 F3d 224 [2d Cir 2002], cert denied sub nom. Metropolitan Transp. Authority v. Greene, 538 US 1031 [200...