Rogers v. Norfolk Southern Corp.

• Decision Date: 22 September 2003
• Docket Number: No. 25720.,25720.
• Citation: 356 S.C. 85,588 S.E.2d 87
• Parties: John David ROGERS, Petitioner, v. NORFOLK SOUTHERN CORPORATION, Norfolk Southern Railway Company, Respondent.
• Court: South Carolina Supreme Court

356 S.C. 85

588 S.E.2d 87

John David ROGERS, Petitioner, v. NORFOLK SOUTHERN CORPORATION, Norfolk Southern Railway Company, Respondent.

No. 25720.

Supreme Court of South Carolina.

Reheard June 10, 2003.

Decided September 22, 2003.

Rehearing Denied November 6, 2003.

Deborah Alley Smith, of Christian & Small, LLP, William Cox Tucker, Jr., of Lucas, Alvis & Wash, PC, both of Birmingham, AL; and Robert A. McKenzie, of McDonald, McKenzie, Rubin, Miller & Lybrand, of Columbia, for Petitioner.

Henry Dargan McMaster and John Gregg McMaster, both of Tompkins & McMaster, of Columbia, for Respondent.

Justice PLEICONES:

We granted certiorari to review the Court of Appeals' decision in Rogers v. Norfolk Southern Corp., 343 S.C. 52, 538 S.E.2d 664 (Ct.App.2000). We affirm as modified.

FACTS¹

Norfolk Southern Corporation ("Norfolk Southern"), under contract with U.S. Silica ("Silica"), transports Silica's product over spur tracks owned by Silica. Silica runs slurry² through pipes running beneath the spur lines to a storage facility.

A slurry pipe ruptured two days before John David Rogers' ("Rogers") injury. Silica employees temporarily repaired the pipes, intending to replace them at a later date. Silica did not notify Norfolk Southern of the rupture.

On the day of Rogers' injury a Norfolk Southern train entered the Silica complex on a spur track. The Norfolk Southern crew, consisting of a conductor and an engineer, dismounted from the train for a break. They returned to discover a large hole beneath the track estimated to be between four to five feet deep and approximately eight to ten feet wide. The train engineer noticed a small stream of clear water at the bottom of the hole, which flowed outward from the direction of the Silica plant. The train conductor testified that no exposed pipe was visible in the hole. The train conductor asked Norfolk Southern to inspect the track to ensure the train could traverse it safely. Norfolk Southern sent Rogers, an assistant track supervisor, to inspect the hole. Rogers testified that, upon arriving at the site, he could see the hole from 150 feet away but could not tell what caused the hole. Rogers' assistant testified to seeing "wet sand" around the hole. Norfolk Southern's head track inspector testified he knew a hole created by the failure of a water line would cause an inspector to be more cautious "than if it had just been water washed across the track or water leaking from a low pressure pipe, [because] it might cause a concave-type hole under the track rather than one that would go straight down."

As Rogers neared the hole, the ground shifted beneath him. Rogers jerked backwards to avoid falling and immediately felt pain in his back. Rogers sought medical treatment and was diagnosed with a herniated disc, which resulted in pain in his back and his left leg. Rogers attempted to return to work after surgery, but he has work restrictions on lifting, bending, stooping, and twenty percent impairment to his lumbar spine.

Rogers filed suit against Norfolk Southern under FELA, alleging Norfolk Southern was negligent in failing to provide him with a reasonably safe place to work. Rogers also filed suit against Silica for common law negligence. The jury returned a $3,000,000 verdict against Silica and Norfolk Southern, apportioning 30% of the verdict to Norfolk Southern and 70% to Silica. Following the verdict, Norfolk Southern's motion for judgment notwithstanding the verdict (JNOV) was denied. The Court of Appeals reversed.

ISSUES

I. Did the Court of Appeals err in applying a state standard in reviewing a trial court's denial of Norfolk Southern's Motion for JNOV in a case premised on federal law?

II. Did the Court of Appeals err in reversing the trial court's denial of Norfolk Southern's Motion for JNOV?

I Standard for JNOV

The Court of Appeals issued its opinion in this case before we decided Norton v. Norfolk Southern Ry. Co., 350 S.C. 473, 567 S.E.2d 851 (2002) in which we held state trial courts hearing a federal claim must review motions for a new trial under a federal standard. In Norton, this Court noted state courts have concurrent jurisdiction to hear Federal Employers Liability Act ("FELA") claims. See id; 45 U.S.C. §§ 51, et seq. We further noted a state court trying a FELA action is controlled by federal substantive law and state procedural law. Because a motion for a new trial involves questions of the sufficiency of evidence, we held state courts must apply federal, not state, standards in reviewing such motions. Norton v. Norfolk Southern Ry. Co., supra.

A Motion for JNOV³ requires a court to determine the sufficiency of the evidence. Therefore, a state court presiding over a FELA action must apply federal rules in deciding a Motion for JNOV. Cf. Norton v. Norfolk Southern Ry. Co., supra.

The Court of Appeals applied the state standard of review and concluded Rogers presented no evidence to support the jury's finding that Norfolk Southern was negligent.⁴ The Court of Appeals erred by failing to apply the federal standard, applicable to both trial and appellate courts, which is:

the evidence and all reasonable inferences from it are assessed in the light most favorable to the non-moving party... and the credibility of all evidence favoring the non-moving party is assumed.... Assessed in this way, the evidence must then be `of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment could reasonably return a verdict for the non-moving party ....' a `mere scintilla of evidence' is not sufficient to withstand the challenge.

Crinkley v. Holiday Inns, 844 F.2d 156, 160 (4th Cir.1988) (internal citations omitted). In other words, "the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957) (citation omitted). However, before the case may be properly left to the jury there must be more than a scintilla of evidence establishing defendant's liability. Brady v. Southern Ry., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943) ("the weight of the evidence under ... [FELA] must be more than a scintilla before the case may be properly left to the discretion of the trier of fact....").

Both the state and federal standards require a trial judge to view the evidence in the light most favorable to the non-moving party. However, under the state standard the trial court should not grant JNOV where the evidence yields more than one inference. An appellate court may not overturn the decision of the trial court, under the state standard, if there is any evidence to support the trial court's ruling.

In contrast, under the federal standard both the trial and appellate courts must ask whether a fair, impartial, and reasonable juror could return a verdict for the non-moving party. To survive the motion the non-moving party must have presented more than a scintilla of evidence to establish his claim. In ruling on a Motion for JNOV in a FELA action, a state court must ask whether more than a scintilla of evidence was presented which "justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Missouri Pac. R. Co., supra.

II Norfolk Southern's Motion for JNOV

Norfolk Southern has a non-delegable duty to provide Rogers a safe place to work, even when Rogers is working on the property of a third party. See Norfolk Southern Ry. Co. v. Trimiew, 253 Va. 22, 480 S.E.2d 104 (1997)

; McGraw v. Norfolk & Western Ry. Co., 201 W.Va. 675, 500 S.E.2d 300 (1997); Schrier v. Indiana Harbor Belt R. Co., 102 Ill.App.3d 855, 58 Ill.Dec. 262, 430 N.E.2d 204 (1981). Norfolk Southern's duty to provide a safe working environment extends only to foreseeable dangers. Brown v. CSX Transp., Inc., 18 F.3d 245, 248 (4th Cir.1994) (quoting Atlantic Coast Line R. Co. v. Craven, 185 F.2d 176, 178 (4th Cir.1950) ("An employer has a duty to provide his employees a safe place to work, but this duty cannot be absolute. Dangers are implicit in such occupations as railroading, and railroads are not insurers of their employees.")); Brown, 18 F.3d at 250 (an employer "may not be held liable if it had no reasonable way of knowing that the hazard, which caused [Plaintiff's] injury, existed.").

Congress mandated courts construe FELA provisions liberally in favor of injured railroad workers. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). Although FELA is to be liberally construed, this "does not mean that it is a workers' compensation statute. [The U.S. Supreme Court has] insisted that FELA `does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur.'" Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543, 114 S.Ct. 2396, 2404, 129 L.Ed.2d 427 (1994). An employee may recover under FELA only upon proving the employer's negligence contributed, in whole or in part, to the worker's injury. See 45 U.S.C. § 51 (a railroad "shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury ... resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier"). Plaintiffs, even under FELA, must prove the traditional common law elements of negligence: duty, breach, causation and damages. See Brown, supra. Reasonable foreseeability of harm is essential to a FELA claim. See Brown, 18 F.3d at 249

.

Rogers was sent to the track on U.S. Silica's premises to inspect the track and report any problems or damages found, and advise his supervisors of any necessary repairs. On the day Rogers was injured,...