N. Desher (Guardian ad litem of P. Devlin) v. SEPTA
212 A.3d 1179
Pa. Commw. Ct.2019Background
- Devlin, a SEPTA welder/rail maintainer, suffered cardiac arrest at work on Oct. 20, 2014; coworkers began CPR and paramedics arrived ~8 minutes after the 911 call and used an AED; Devlin survived with anoxic brain injury.
- SEPTA had an Accident and Illness Prevention Program (AIPP) in place since 2007 placing AEDs at facilities and training ~5 employees per AED; testimony indicated training and notification practices varied at the Courtland Yard.
- Appellant (guardian ad litem) sued under the Federal Employers’ Liability Act (FELA), alleging SEPTA breached its duty to provide a reasonably safe workplace by failing to implement/enforce the AIPP (adequate AED training/availability).
- Appellant proffered expert Franklin Darius to relate OSHA first-aid regulation and nonbinding OSHA guidance recommending consideration of AEDs; trial court granted SEPTA’s motion in limine to exclude that testimony.
- Trial court granted SEPTA’s renewed summary judgment, concluding SEPTA’s FELA duty did not require anticipating Devlin’s cardiac arrest or mandating AED use; Commonwealth Court affirmed on different reasoning—no evidence of a heightened, work-related risk of cardiac arrest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FELA duty required SEPTA to properly implement AIPP/AED policies | AIPP is a voluntarily adopted "safety rule" addressing foreseeable workplace harm; SEPTA had a duty to enforce it | AED provisions do not address risks arising from performance of work duties; no FELA duty to provide AEDs generally | Court: FELA duty hinges on reasonable foreseeability of a risk heightened by employment; record lacked evidence of heightened workplace risk of cardiac events, so no material fact on standard of care—affirmed summary judgment |
| Whether breach (failure to implement AIPP) was a jury question | Evidence of poor notice/training (coworkers unaware of AED or trained personnel) creates disputed fact for jury | SEPTA: no actionable breach because no duty to anticipate cardiac arrest or provide AEDs | Court: Because plaintiff offered no evidence that employment created a heightened risk of cardiac arrest, there was no genuine issue of material fact on standard of care or breach; trial court’s summary judgment stands |
| Admissibility of Darius’s expert testimony re: OSHA guidance | Testimony is relevant to show a more effective AED implementation model (not to prove OSHA violation) | Testimony more prejudicial than probative because OSHA regs do not mandate AEDs and guidance is nonbinding | Court: Exclusion was not error—expert testimony did not address foreseeability/heightened workplace risk which was dispositive; Rule 403 basis acceptable |
| Waiver of appellate issues for variations in Rule 1925(b) wording | Appellant preserved negligence/duty arguments; subsidiary "safety rule" issues were raised below | SEPTA argued phrasing differences and vagueness waived issues | Court: No waiver; Rule 1925(b) preserved the negligence claims and subsidiary issues were fairly presented |
Key Cases Cited
- Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500 (U.S. 1957) (FELA summary-judgment standard: jury right unless employer negligence played no part)
- Gallick v. Baltimore & Ohio R.R., 372 U.S. 108 (U.S. 1963) (employer liable under FELA where harm was reasonably foreseeable and heightened by workplace condition)
- Bailey v. Central Vermont Railway, 319 U.S. 350 (U.S. 1943) (FELA duty to provide reasonably safe workplace recognized; not an insurer)
- Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (U.S. 1994) (FELA does not make employer insurer of employee safety)
- Harding v. Consolidated Rail Corp., 620 A.2d 1185 (Pa. Super. 1993) (FELA cases are jury-oriented; courts should rarely deny jury trial)
- Manson v. Southeastern Pennsylvania Transportation Authority, 767 A.2d 1 (Pa. Cmwlth. 2001) (FELA imposes a duty to provide reasonably safe workplace)