Williams v. Norfolk Southern Ry. Co., Inc.

• Decision Date: 26 July 1991
• Docket Number: Civ. A. No. 90-1491-A.
• Citation: 767 F. Supp. 756
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Leonard E. WILLIAMS, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, INC., et al., Defendants.

767 F. Supp. 756

Leonard E. WILLIAMS, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, INC., et al., Defendants.

Civ. A. No. 90-1491-A.

United States District Court, E.D. Virginia, Alexandria Division.

July 26, 1991.

Walsh, Kathleen Grace, Alexandria, Va., for Leonard E. Williams.

George William Marget III, Williams, Mullen, Christian and Dobbins, Richmond, Va., for Norfolk Southern Ry. Co., Inc., and National R. Passenger Corp.

Julia B. Judkins, Lewis, Trichilo & Bancroft, Fairfax, Va., for Catlett Volunteer Fire Co., Inc. and Kevin A. Bell.

MEMORANDUM OPINION

ELLIS, District Judge.

The Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. ("FELA" or the "Act") gives railroad workers a remedy against the railroad for injuries sustained in the course of their employment as a result of the negligence of the railroad or its agents. But injuries incurred while "commuting" to or from work are not sustained in the course of employment. Thus courts, applying the "commuter rule", have consistently denied the FELA remedy to workers injured while commuting. This case presents two questions. The first is whether the commuter rule bars a maintenance-of-way repairman from recovery under FELA where his injuries were sustained en route home via optional transportation provided by Amtrak.¹ Next, because FELA liability is triggered only by the negligence of the railroad or its agent, the second question is whether Amtrak acted as defendant Norfolk Southern's agent in furnishing transportation to its employees, pursuant to a contract with the railroad.

For the reasons set forth here, the Court concludes that plaintiff was commuting home when he was injured in an Amtrak derailment and hence, the injury occurred outside the course of plaintiff's employment. The Court also concludes that Amtrak's alleged negligence cannot be imputed to Norfolk Southern by means of agency. Norfolk Southern's motion for partial summary judgment must therefore be granted.

FACTS

The dispositive facts are not disputed. Norfolk Southern employed plaintiff to repair railway tracks at designated work sites covering a region from Atlanta, Georgia to Alexandria, Virginia. On Sunday, September 24, 1989, plaintiff was scheduled to report to work at a site in the vicinity of Alexandria. His journey to the work site consisted of three segments: (i) from his home in Asheville, North Carolina to Spartanburg, South Carolina; (ii) from Spartanburg to Alexandria; and (iii) from Alexandria to the designated nearby work site. Norfolk Southern required no specific mode of travel for the first two legs of the trip. Plaintiff and his fellow workers were permitted to choose their own means of transportation for these legs. For the first segment, plaintiff chose to travel by personal auto. On other occasions, he had also used personal auto for the second leg. On this occasion, however, he chose Amtrak for the second leg. The fare was paid by Norfolk Southern. He was joined on Amtrak by three other track maintenance employees who had chosen to travel by train. Other track maintenance employees assigned to the same job had selected other means of travel to Alexandria. But all employees were obligated to assemble at Alexandria. Once there, the group was transported to the work site by way of rail sidecar. The mode of travel for this segment was required. No other choice was allowed. Plaintiff, an hourly employee, was not compensated for the travel time incurred during the first and second segments of his trip. His hourly compensation only began with the third leg, the rail sidecar trip from Alexandria to the work site.

Plaintiff's return trip home involved the same three legs in reverse. Thus, on the evening of September 28, 1989, plaintiff again elected to return home from Alexandria via Amtrak. As was true for his trip to the work site, plaintiff performed no railroad work during the Alexandria to Spartanburg segment of the trip. Nor did he receive any compensation from Norfolk Southern for this leg. On this leg, he was just one of the more than two hundred passengers on the Amtrak train when it collided with a firetruck and derailed at a crossing in Virginia, thereby causing plaintiff's injuries.

ANALYSIS

Analysis properly begins with FELA, which establishes a right of action for employees of common carriers injured within the scope of their employment by the negligence of their employer or the employer's agent.² Enacted "to enlarge the remedy of railway employees injured as a result of the hazards incident to their work",³ the Act eliminates the employer's common law defenses of assumption of risk and contributory negligence. "FELA cases today rarely present more than the single question whether negligence of the employer played any part, however small, in the injury". Rogers v. Missouri Pac. R.R., 352 U.S. 500, 508, 77 S.Ct. 443, 449, 1 L.Ed.2d 493 (1957); see also Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (1943). Recovery under FELA requires a railway employee injured in transit to or from a job site to demonstrate: 1) "that the travel was taken in the course of the plaintiff's employment, and 2) that the transport company was related to the railroad and its work in such a way as to cause the railroad to be liable for the negligence of the transporting company". Thomas v. Grigorescu, 582 F.Supp. 514, 516 (S.D.N.Y.), aff'd., 751 F.2d 371 (2d Cir.1984) (Table affirmance).⁴ Both requirements must be met. See id. In this case, plaintiff meets neither; he has failed to establish either that his injury occurred within the scope of his employment, or that Amtrak was the agent of employer Norfolk Southern.

I. Scope of the Employment—The Commuter Rule

The FELA is of limited application; it "protects employees only if they are injured within the scope of employment". Moore v. Chesapeake & O. Ry., 649 F.2d 1004, 1008 (4th Cir.1981) (citing Getty v. Boston & Maine Corp., 505 F.2d 1226 (1st Cir.1974)). Consistent with this limitation, courts have long held that railway employees injured in transit to or from work are commuting, and hence not within the scope of their employment. This settled rule, known colloquially as "the commuter rule", is well illustrated by Sassaman v. Pennsylvania R.R., 144 F.2d 950, 955 (3d Cir. 1944). There, a commuting dispatcher, injured while stepping off a railway platform, was held to be outside the scope of his employment for purposes of recovery under FELA. In reaching this conclusion, the Third Circuit noted that

where the employee having completed or not yet having undertaken his work for the day and not being under any direction or compulsion from his employer as to his mode of travel to and from work, utilized, of his own volition, the employer's regular passenger train gratis ... he was held not to be in the performance of his employment, while so travelling, but a passenger and as such, entitled to the care due by a common carrier to a passenger for hire.

The case at bar fits this formula. In traveling on Amtrak to Alexandria, plaintiff, like the claimant in Sassaman, had not yet "undertaken his work for the day". Similarly, plaintiff, in traveling on Amtrak from Alexandria to Spartanburg, had ceased his work for the day; he performed no employment duties while on Amtrak and received no compensation for his time.⁵ Further, like the claimant in Sassaman, plaintiff was under no "direction or compulsion from his employer as to his mode of travel"; he chose Amtrak "of his own volition". Id.⁶ That Amtrak was gratis to plaintiff is not significant, just as it was not significant in Sassaman that claimant's choice of travel there, a passenger train, was gratis to him. And just as the case at bar fits the Sassaman factual formula, so, too, is it consistent with the commuter rule's rationale. The justification for the rule's limitation of FELA coverage is the employer's lack of control over the risks associated with commuter travel. By limiting FELA to injuries suffered by plaintiff "while he is employed", Congress chose to limit FELA's additional burdens on employers to those risks over which the employer has substantial control. Amtrak travel, like private auto travel, had plaintiff chosen it, was not part of plaintiff's job, nor did Norfolk Southern have substantial control over the risks associated with either mode of travel. Because plaintiff chose to commute on Amtrak, his ability to recover damages for injuries suffered as a result of the derailment should be no different from the ability of any injured Amtrak passenger to recover damages. Absence of occupational risk is central to "commuter rule" applicability. Plaintiff's travel on Amtrak exposed him to no more risk than that of any other Amtrak passenger. See Kress v. Long Island R.R., 526 F.Supp. 856, 859 (S.D.N.Y.1981); Metropolitan Coal Co. v. Johnson, 265 F.2d 173, 178 (1st Cir.1959) (refusing to extend FELA coverage to injuries suffered while commuting because the employee, while commuting, is not subjected to the peculiar or abnormal dangers of railroad work, which is the focus of the Act). In short, FELA was enacted to protect railway workers against the dangers of the actual railway work, not against the risks of commuting.

The result reached here is consistent not just with Sassaman, but with the majority of FELA commuter cases. See Metropolitan Coal Co., (railway flagman injured by shattered window while commuting held outside scope of employment for FELA recovery purposes); Quirk v. New York C. & ST. L. R.R., 189 F.2d 97 (7th Cir.) (railroad employer not liable under FELA for death of supervisor killed in automobile crash when commuting home), cert. denied, 342 U.S. 871, 72 S.Ct. 105, 96 L.Ed. 655 (1951); Getty v. Boston & Maine Corp., 505 F.2d at 1226 (railway employee sustaining parking lot injury barred by commuter rule from recovery under FELA).

Plaintiff seeks to distinguish this case from these commuter rule cases...