Smith v. Csx Transp. Inc.

• Decision Date: 26 April 2011
• Docket Number: No. A10A1289.,A10A1289.
• Citation: 703 S.E.2d 671,306 Ga.App. 897
• Parties: SMITHv.CSX TRANSPORTATION, INC.
• Court: Georgia Court of Appeals

306 Ga.App. 897

703 S.E.2d 671

10 FCDR 3530

SMITH

v.CSX TRANSPORTATION, INC.

No. A10A1289.

Court of Appeals of Georgia.

Oct. 25, 2010.Reconsideration denied Nov. 23, 2010.Certiorari Granted April 26, 2011.

Michael J. Warshauer, Douglas C. Dumont, Atlanta, for appellant.Casey Gilson, James E. Gilson, Karen R. Dunbar, Atlanta, for appellee.ELLINGTON, Judge.

After Larry Smith slipped and fell on stairs on property owned by CSX Transportation, Inc., he brought this action against CSX in the Superior Court of Gwinnett County under the Federal Employers' Liability Act (“FELA”).¹ A jury returned a verdict in favor of CSX. Following the denial of his motion for a new trial, Smith appeals, contending the trial court erred in admitting evidence that, at the time he fell, he was “out of service.” In addition, he contends the trial court erred in failing to instruct the jury regarding a federal regulation that requires slip-resistant stair treads and nonslip nosings ² in the workplace. For the reasons explained below, we reverse.

The evidence shows that Smith was employed as a CSX conductor on April 6, 2004, when he went to the Terminal Administration Building in Walbridge, Ohio to attend a mandatory union safety meeting in his capacity as a local chairman. Smith took interior stairs to reach the second-floor meeting room. Smith's foot slipped as he stepped on a stair tread that had a small puddle of liquid soap on it, and his left knee hit the edge of the step. One year later, Smith had knee surgery.

Smith sued CSX for damages pursuant to FELA, which provides a federal tort remedy for railroad employees who are injured on the job.³ FELA protects an employee who works for a railroad engaged in interstate commerce and whose duties affect or further the employer's interstate transportation business whenever that employee is working within the scope of his or her employment.⁴ Activities within the scope of employment include those that are necessarily incidental to the employment, even if the employee is off duty, but not those undertaken for a private purpose and having no causal relationship with the employment.⁵ In order to recover against CSX under FELA, Smith was required to prove, inter alia, that he was protected by FELA at the time of injury; that CSX was negligent in that it breached its duty to exercise reasonable care under the circumstances to provide Smith a reasonably safe place in which to work; and that CSX's negligence played some part in Smith's injury. ⁶

Before trial, Smith moved in limine to exclude any evidence that CSX had disciplined him before the April 2004 incident, arguing that such evidence of bad character was irrelevant to the issue of whether FELA applies to his claim. In particular, Smith sought to exclude any evidence that on April 6, several hours before he slipped on the stairs, two supervisors observed him violate a safety rule and told him that he was “out of service.” The trial court granted the motion.

Notwithstanding this ruling, CSX argued, in its opening statement, that

Smith should not have been there that morning. He had been taken out of service just hours before ... by company officials who told him, “You're out of service,” which he knows means you're not allowed to come on company property. So he should not have even been there.

On cross-examination, CSX's counsel asked Smith whether being out of service means that the employee cannot go onto CSX property without permission. Smith responded that it does not mean that. Counsel then asked whether it was Smith's contention that he was not taken out of service on April 6. Smith affirmatively testified that “[he] was not taken out of service” that morning. CSX's counsel then asked Smith whether, hours before the safety meeting, two supervisors, Jim Horner and Justin Forro, told him that they had seen him dismount moving equipment, a safety rule violation. Smith admitted that they had, but testified that they did not tell him that he was out of service. In addition, he testified that they lacked the authority to take him out of service.

At the beginning of CSX's case-in-chief, Smith moved to prohibit CSX from presenting at trial the deposition testimony of Horner and Forro. The trial court denied the motion and allowed the testimony. Employing a general verdict form, the jury found in favor of CSX.

1. Smith contends that the question of whether, at the time of injury, an employee was working in the course of his employment in interstate commerce is a question of law for the court. Further, he contends that, even if he had been taken out of service on the day he slipped, the evidence established, as a matter of law, that he was furthering CSX's business in interstate commerce by attending the mandatory safety meeting as a local union chairman and, therefore, he is entitled to the protections of FELA. As a result, he contends, evidence that he had been taken out of service was irrelevant to any issue to be decided by the jury, and the trial court erred in admitting it. Smith contends that evidence that he committed a serious safety rule violation reflected poorly on his character and credibility and, therefore, that the trial court's error prejudiced him.⁷ “We review a trial court's decisions on the admissibility of evidence under an abuse of discretion standard.” (Citation and punctuation omitted.) Fuller v. Flash Foods, 298 Ga.App. 217, 220(2), 679 S.E.2d 775 (2009).

As noted above, the trial court granted Smith's motion in limine, ruling inadmissible any evidence that CSX had disciplined Smith, including evidence that hours before he slipped on the stairs on April 6, 2004, Horner and Forro told him that he was “out of service” because they had observed him violating a safety rule. When CSX's counsel asked Smith whether he had been taken out of service that morning, however, Smith's counsel delayed his objection to that line of questioning until after Smith affirmatively testified that Horner and Forro did not tell him that he was out of service on April 6. Under Georgia law, “[a] witness may be impeached by disproving the facts testified to by him [or her].” OCGA § 24–9–82. Although a witness may not be impeached by disproving facts that are “wholly immaterial” to the matters at issue in the case, a witness may be impeached on a collateral issue which is “indirectly material” to the matters at issue. (Citation and punctuation omitted.) Barngrover v. Hins, 289 Ga.App. 410, 412(1), 657 S.E.2d 14 (2008).

We conclude that the circumstances surrounding Smith's dispute with Horner and Forro a few hours before Smith went to the administration building to attend the safety meeting were at least indirectly material to matters at issue in this case, including whether Smith was acting within the scope of his employment when he fell. Although the favorable ruling on Smith's motion in limine did not require him to object to evidence encompassed by his motion,⁸ we conclude that, once Smith submitted to questioning on the issue without seeking to enforce the limine ruling, he opened the door to being impeached with evidence that tended to disprove his testimony. Accordingly, the trial court did not abuse its discretion in allowing CSX to cross-examine Smith on the issue and in admitting the testimony of Horner and Forro for purposes of disproving certain facts to which Smith had testified. Morris v. State Farm, etc. Ins. Co., 203 Ga.App. 839, 842(9), 418 S.E.2d 119 (1992); Swift & Co. v. Lawson, 95 Ga.App. 35, 54–57(6), 97 S.E.2d 168 (1957).

2. Smith contends the trial court erred in failing to instruct the jury, as he requested, regarding a regulation issued by the federal Occupational Safety and Health Administration (“OSHA”) that requires that stair treads be reasonably slip-resistant and that the nosings have a nonslip finish.⁹ “A requested charge should be given where it has been raised by the evidence, embraces a correct and complete principle of law, has not been substantially included in the general instructions given, and is specifically adjusted to the evidence.” (Citation and punctuation omitted.) State Farm v. Nelson, 296 Ga.App. 47, 49(2), 673 S.E.2d 588 (2009). ¹⁰

It is the duty of the trial court to charge the jury on the law applicable to the issues where there is any evidence on which to predicate the instructions. A refusal to give a [requested] charge is error if the charge is a correct statement of the law and applicable to the issues involved.(Citations and punctuation omitted.) Blankenship v. West Ga. Plumbing Supply, 213 Ga.App. 275, 277, 444 S.E.2d 596 (1994).

Generally, evidence of noncompliance with OSHA regulations is admissible as evidence of an employer's negligence.¹¹ In this case, Smith presented evidence that the nosings on the stairs in the CSX administration building where he fell were not of a nonslip finish ¹² and that, together with the soap spill, the nosings' finish caused his fall.¹³ The trial court refused to give the requested charge, however, based on its conclusion that 29 CFR § 1910.24 does not apply to the type of building in which Smith fell, that is, an office building. This was error. OSHA's general standards, which are set out in 29 CFR Part 1910, apply to any workplace, unless specifically excepted. 29 CFR § 1910.5(a). See also 29 CFR § 1910. 5(c)(2). The jury instruction Smith requested is drawn from 29 CFR § 1910.24, which “contains specifications for the safe design and construction of fixed general industrial stairs.” 29 CFR § 1910.24(a). In the context of 29 CFR Part 1910, the modifier “general industry” or “general industrial” plainly denotes that the standard has general application to any workplace and is not limited to certain industries that are subject to additional, particularized standards.¹⁴ Subpart D, which provides standards for “walking-working surfaces,” is such a general standard. Further, the office building in which Smith fell does not fall...