Thaxton v. Norfolk Southern Ry. Co.

• Court: Georgia Court of Appeals
• Writing for the Court: POPE, Presiding.
• Citation: Thaxton v. Norfolk Southern Ry. Co., 239 Ga. App. 18, 520 S.E.2d 735 (Ga. App. 1999)
• Decision Date: 08 July 1999
• Docket Number: No. A99A0397.,A99A0397.
• Parties: THAXTON v. NORFOLK SOUTHERN RAILWAY COMPANY et al.

520 S.E.2d 735

239 Ga. App. 18

THAXTON v. NORFOLK SOUTHERN RAILWAY COMPANY et al.

No. A99A0397.

Court of Appeals of Georgia.

July 8, 1999.

Jones & Granger, John A. Moss, Atlanta, for appellant.

Nelson, Mullins, Riley & Scarborough, Richard K. Hines V, Richard B. North, Jr., Atlanta, for appellees.

POPE, Presiding Judge.

After Larry Thaxton was diagnosed with lung cancer, he brought this suit against Norfolk Southern Railway Company and its subsidiary, Alabama Great Southern Railway Company, alleging injury from second-hand smoke. He sued the defendants under the Federal Employers' Liability Act ("FELA"), 45 USC § 51 et seq., claiming that his cancer was caused by the environmental tobacco smoke generated by his co-workers when he stayed in sleeping trailers while working on the railroad's tracks and railyards. After the complaint was filed, Larry Thaxton died. His widow moved to add Norfolk Southern Corporation ("NSC") and Norfolk & Western Railway Company as defendants. The trial court denied the motion, and we granted the interlocutory application to determine whether the court's denial of the motion to add these parties was proper. For the following reasons, we reverse.

The complaint was originally filed on February 12, 1996, by Larry Thaxton, who named as defendants Norfolk Southern Railway and Alabama Great Southern Railway Company. Larry Thaxton claimed that he began working for Norfolk Southern Railway or its subsidiary, Alabama Great Southern Railway Company in 1982. He alleged that defendants failed to provide him with a reasonably safe place to work in that he was repeatedly exposed to second-hand cigarette smoke. He also claimed that defendants' medical agents failed to inform him in a timely fashion about a spot on his lung which they found during a lung X-ray and that because of this delay, the cancer grew and spread undetected in his body.

Although Larry Thaxton initially sued only Norfolk Southern Railway, discovery revealed that it was NSC which was entirely responsible for decisions relating to the no-smoking policy. It was undisputed that Norfolk Southern Railway was not involved in determining the no-smoking policy, and that the railway simply implemented the policy which NSC set.

Accordingly, on June 5, 1997, Larry Thaxton filed a motion to add NSC as a party defendant. In the motion, he asserted that all of the decisions relating to the no-smoking policy were made by NSC and that, accordingly, NSC was liable under FELA. NSC opposed the motion by filing the affidavit of Sandra Pierce, the assistant corporate secretary of NSC, in which she avowed that NSC was not registered as an operating common carrier by rail and that it did not own any rolling stock used to perform common carrier operations by rail in any other state. She further stated that NSC did not operate any trains or employ any people to operate trains. She stated that NSC was a holding company which owned stock in various transportation companies, and that it was the owner of all of the outstanding common stock of Norfolk Southern Railway, which in turn owned all of the outstanding common stock of Norfolk & Western Railway.

Based on the railway's position, on September 22, 1997, Larry Thaxton's widow,¹ Jacqueline Thaxton, individually and as administratrix of the estate of Larry Thaxton, filed another motion to add NSC.² Thaxton's theory was that NSC promulgated policies regarding environmental tobacco smoke which harmed the decedent and that it was liable for failure to provide a reasonably safe workplace. In the motion, Thaxton argued that common law remedies against NSC were appropriate based on the previous representations that NSC was not her husband's "employer" within the meaning of FELA. Thaxton claimed that because NSC was not her husband's employer, it could be sued under common law for various damages, including punitives and loss of consortium. Thaxton attached to her motion the affidavit of the NSC corporate secretary avowing that in various respects NSC was not a "common carrier" subject to FELA.

With the motion, Thaxton also attached a copy of her proposed amended complaint in which she claimed that NSC was liable for her husband's wrongful death. Thaxton alleged that NSC failed to adopt a policy which would have protected her husband from the effects of environmental smoke; failed to implement a no-smoking policy; and failed to inform her husband of the presence of a cancerous spot on his lung. The complaint also alleged that NSC acted wilfully and wantonly.

1. Thaxton argues that the court erred in denying her motion to add NSC as a party. Thaxton asserts that neither she nor the railway argues that FELA applies against NSC; instead she contends that NSC is liable under common law. She argues that as the entity responsible for promulgating the relevant no-smoking policies, NSC was liable for negligence under state law. Thaxton claims that despite its awareness of the hazards of smoking, NSC consistently refused to adopt a no-smoking policy and that she should be allowed to sue NSC under common law and recover various damages which are unavailable under FELA. See generally Central of Ga. R. Co. v. Swindle, 260 Ga. 685, 686, 398 S.E.2d 365 (1990).

The railroad argues that Thaxton is seeking to circumvent the purpose and exclusivity provisions of FELA. It contends that it is well settled that FELA is the sole and exclusive remedy for injured employees of rail carriers engaged in interstate commerce. Nevertheless, Norfolk Southern argues that though NSC was not Larry Thaxton's employer, NSC is in "vertical privity" with it, and that Thaxton is therefore barred from asserting a common law claim against NSC. In other words, on the one hand, Norfolk Southern argues that the remedies under FELA are the exclusive remedies available to Thaxton; on the other hand, Norfolk Southern argues that FELA is not available to Thaxton in this suit.

We agree with Thaxton that NSC is not immune from suit and that one of these arguments must fail. Despite its creative efforts to protect itself, as promulgator of the policies at issue in this case, NSC is subject to suit. The question thus becomes, is Thaxton's remedy under common law or under FELA?

"It is well established that in enacting FELA, Congress superseded state law remedies in the subject area covered by FELA and provided the exclusive remedy for employees of common carriers injured by the negligence of their employers. [Cits.]" (Citations and punctuation omitted.) Bowers v. Estep, 204 Ga.App. 615, 616(1), 420 S.E.2d 336 (1992). See generally 45 USC § 51 et seq. Thus, in cases in which a plaintiff alleges that a defendant common carrier is liable for acts occurring in the course of the plaintiff's employment with a railroad, a common carrier engaged in interstate commerce, FELA provides the exclusive remedy for the plaintiff's claims that fall within the terms of the Act. Bowers v. Estep, 204 Ga.App. at 616(1), 420 S.E.2d 336.

45 USC § 51 provides that it applies to "[e]very common carrier by railroad while engaging in commerce" Here, both parties claim that FELA does not apply because NSC is not a "common carrier" within the meaning of the act. In support of its position that NSC is not a "common carrier," the railway cites Edwards v. Pacific Fruit Express Co., 390 U.S. 538, 543, 88 S.Ct. 1239, 20 L.Ed.2d 112 (1968) (refrigerator car company which leased refrigerator cars to railroads and controlled these cars was not "common carrier"); Wells Fargo & Co. v. Taylor, 254 U.S. 175, 187(3), 41 S.Ct. 93, 65 L.Ed. 205 (1920) (express company was not "common carrier"; term means "one who operates a railroad as a means of carrying for the public"); Kelly v. Gen. Elec. Co., 110 F.Supp. 4, 8 (E.D.Pa.1953) (General Electric Company, which was engaged in manufacture and sale of electrical equipment was not a "common carrier by railroad"); and Malvern Gravel Co. v. Mitchell, 238 Ark. 848, 385 S.W.2d 144, 148 (1964) (gravel company was not a "common carrier"). While these cases discuss the definition of a "common carrier," they are not dispositive of the question raised here: whether a parent holding company is a "common carrier" and, thus, liable under FELA for its subsidiary.

45 USC § 57, which neither party cites, provides the critical definition of "common carrier" for purposes of FELA. That section states that the "term `common carrier' as used in this chapter shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier." (Emphasis supplied.)

Davis v. Alexander, 269 U.S. 114(2), 46 S.Ct. 34, 70 L.Ed. 186 (1925), provided guidance regarding subsidiary railroads, stating: "[w]here one railroad company actually controls another and operates both as a single system, the dominant company will be liable for injuries due to the negligence of the subsidiary company." Id. at 117, 46 S.Ct. 34. Using the same test as to whether the dominant company actually controls and operates the subsidiary, the court in Southern R. Co. v. Crosby, 201 F.2d 878 (4th Cir.1953), found that the injured railway worker was an employee of the dominant railroad. In so finding, the court quoted a previous case, stating:

The mere fact that the [dominant company] owned most of the [subsidiary company] stock did not answer the question, but it assisted; and when to that fac[t] was added the subordinate carrier's method of getting engines, arranging and dispatching trains, and using terminals, there was enough uncontradicted evidence to justify the jury (and in our opinion the court) in holding that the interstate commerce of the Erie System—i.e., of several co-ordinated and centrally controlled carriers— was in acquisition and performance one commerce belonging to the master company. It matters not what we assume the earnings of the controlled railways to have been...