Charles A. Ries, III v. National Railroad Passenger Corporation, A/K/A Amtrak National Railroad Passenger Corporation

from this It is clear Ser- excerpt of the Postal complete more the Postal that statement opening

vice’s (1) elements: had two argument Service’s work, and comparable not seek did Clarke time work. seek full not Clarke did trial is position at Service’s

The Postal dispositive as or so unambiguous so

not Service finding that the Postal prior to trial the case have settled

would A facts.

had it known the court, on the even by a district

effect us, clear-

sparse record before

ly erroneous. respectfully dissent

Accordingly, I af- majority opinion part of the attorney’s fees and

firms award remand interest

prejudgment for further the district court matter I in all oth- concur determinations.

factual opinion. aspects of

er RIES, III A.

Charles PASSENGER RAILROAD

NATIONAL

CORPORATION, Amtrak a/k/a Passenger Railroad

National Appellant.

Corporation,

No. 91-1495. Appeals, Court of

United States

Third Circuit.

Argued Jan. 1992. 31, 1992. March

Decided Rehearing In Banc

Rehearing and April 1992.

Denied

this non-work-related injury. Ries was em- ployed Amtrak, as a machinist for and he reported July to work on 1989 Am- trak’s main service building, which adja- cent to the 30th Street Station Philadel- phia. morning On the July Ries was descending a seven-step stairway concrete loading platform from a ground to the building, slipped service he when on the step,1 bottom which was six inches off the ground, and turned his foot on a stone. slip-resistant The metal tread on the bot- (argued), William G. Ballaine Mark S. step stairway tom missing, was Landman, Edelson, Siff, A. William Rosen nosing metal had chipped away, been P.C., Parker, City, appel- York for & New remaining concrete was deteriorated lant. and rounded off three inches. In the Joseph Lasch, (argued), Meyer, Smukler fall, course of his injured right Ries his Poul, Pa., Philadelphia, appel- Hankin & for ankle—the same ankle he had hurt four lee. days earlier at home. Altman, Pa., Philadelphia, Jonathan for A subsequent x-ray revealed no break

amicus curiae Ass’n of American Railroads. applied and an air cast right was to his ankle. The doctor who treated Ries later COWEN, Before: NYGAARD and that, opinion, testified in his inju- the ankle GARTH, Judges. Circuit ry of a preexisting aggravation was “an App. calcaneal fracture.” at 161 THE OPINION OF COURT Ries also suffered minor right to his shoulder and lower back. He COWEN, Judge. Circuit to return unable to work until June appeal This arises from a suit Charles months after injury. eleven Ries’ against Ries the National Railroad Passen- injuries required fourteen visits to the doc- (Amtrak) ger Corporation damages re- physical thirty-five therapy tor and treat- sulting from injury an to his ankle. This July January ments between 1989 and money, case involves a modest amount of 1991. important Specifically, but an issue of law. we are asked to consider whether viola- brought Ries suit federal district court Occupational an tion of and Health (1988). under the 51-60 §§ (OSHA) regulation Act establishes negligence, As evidence of Amtrak’s he gence per bars consideration of an objection introduced over Amtrak’s an ad- employee’s contributory negligence under regulation promulgated under ministrative Employers’ Federal Liability Act OSHA, U.S.C. §§ (FELA). appeals Amtrak from an adverse regulation in existence at the time of Ries’ judgment in the district court. We will following specifications provided fall reverse. for fixed industrial stairs: [Tjread top landing Stair treads.

I. used, stairway, risers are where one- nose which extends should have a July severely On Charles Ries beyond to 1 inch the face of the home, half inch right requiring his ankle at an even riser. Noses should have emergency trip hospital. lower to the He was All be reason- discharged day leading edge. on crutches that same treads shall step been in a years Ries and that the bottom had 1. There was evidence that had used the year. stairway for more than two or three times a week for condition several deteriorated A. nosings shall slip-resistant and ably non-slip finish. Employers’ Liability Act Federal grow address the in 19082 to was enacted 1910.24(f) (1990). No witness 29 C.F.R. § injuries in the of work-related ing number regulation, nor OSHA the testified about today is one industry, even railroad which had Amtrak any evidence was there in this dangerous industries of the most violating the administratively for cited been Jerry Phillips, An country. J. Evaluation However, court district the regulation. Act, Liability Employers’ the Federal regula- if this OSHA jury that charged the 49, (1988). 50-52 Diego 25 L.Rev. San violated, be liable would Amtrak tion was statutes, FELA, like other industrial FELA, if violation the even under the in require the attempt to railroad was an responsible only slightly regulation was the for the inevitable dustry to the costs bear words, Amtrak’s injury. In other Ries’ employees which injuries and deaths regulation would of the OSHA violation overhead” business. comprised the “human under the per se negligence constitute Dredging v. Ker nan American court also instructed district FELA. The 431, 2 426, 78 S.Ct. contributory negligence that Ries’ jury the (1958). 382 also Wilkerson L.Ed.2d damages if recovery of full not bar a 53, 68, 69 S.Ct. McCarthy, 336 U.S. violated. regulation was the J., (Douglas, con 497 L.Ed. in returned a verdict favor jury Liability (“The Employers’ curring) Federal found $37,130. Although jury the Ries for put on designed to the Act was responsible percent seventy-five to be legs, Ries of the cost for industry some per- only twenty-five Amtrak injury and in which it consumed eyes, arms and lives required to Amtrak was responsible, cent intended to es operations.”). its damages merely remedy its share for rail pay not dependable tort tablish the entire amount of ($9,282.50) but com road workers verdict, jury found Amtrak also but since for their pensate them regulation pertain- encourage had violated within appeals enacting Amtrak supra, treads. at 50-51. to stair Phillips, (1988). FELA, the creation “Congress intended court under which would be remedy, one

no static but changing to meet developed enlarged II. concepts of indus changing conditions Kernan, workers.” try’s toward its dispute its viola Amtrak does not also at 398. See regulation pertaining tion of Corp., 948 Rail Rogers v. Consolidated treads, dispute the admis nor does it stair Cir.1991); (2d Lewy v. South F.2d as evidence violation sion of the OSHA F.2d Transp. ern Rather, contests Pacific Amtrak negligence. its Cir.1986); Ter (9th v. River Green em an court’s instructions the district (6th Cir. minal regulation of an ployer’s violation 1985)(all liberal construction suggesting con se and bars constitutes recovery). facilitate in order to the FELA To the FELA. tributory negligence under issue, predicated FELA is must first examine Liability under resolve this OSHA, employer. Under respec the FELA on the scope of law, tort principles of “[t]he the interac we will examine traditional tively. Then enact- legislative ap Because this unexcused two statutes. tion of the regulation which ment or administrative federal the construction peal involves defining the by the court adopted statutes, plenary. Dawson our review man, is a reasonable of conduct States, Cir. standard United common itself,” or more 1990). R.R., Cent. v. Illinois preme in Howard originally Court but was enacted 2. The FELA L.Ed. 297 U.S. Su- down as unconstitutional struck usage, negligence tug se.3 Restatement when caught bis fire as a result of a Torts, 288B(1) (1965). (Second) of As to lamp igniting kerosene vapors inflammable Court has modified above the lamp water. The violated a recovery by finding negligence per if the Coast Guard requiring that statutory violation “contributes in fact to lamps eight be more than feet above the suit, regard death or without water. The issue was whether that viola injury flowing to whether from the tion could lead se under sought was the the statute breach Act, the Jones “which in terms incorpo prevent.” provisions rates the of the FELA.” Ker statutory duty If a S.Ct. at 398. is violated nan, 355 U.S. at 78 S.Ct. at 397. An employee employer, the the recover will swering question affirmative, in the damages all her under the FELA of even Court concluded that the FELA was not though employee contributorily negli- meant to to Appli gent: ance Inspection and Boiler Acts: employee may injured such who be [N]o theory of the FELA is that where [T]he guilty or killed shall be held to have been employer’s conduct falls short of the contributory negligence any in of case high required standard of him by this where the violation such common Act, fault, and his in part, whole or in any statute enacted of carrier injury, causes liability ensues. And this safety employees contributed to the result follows whether the fault is a vio- employee. or death of such statutory duty lation of a or the more added). (emphasis 53 The is- general duty acting with care. case, then, in sue whether an OSHA 438-39, Id. 78 S.Ct. at 401-02. type safety is the previous This court’s decisions have trigger provi- whose violation would broadly provisions construed other sions of the FELA. recently FELA. We noted that “[r]ecom- It is that the FELA re well-settled pense for industrial such as those quires se when by plaintiff suffered here should not have has of a stat there been violation depend vagaries on the of a statute such specifically ute aimed at the railroad indus Safety Appliance as the Act or FELA.” See, Rapids e.g., Crane Cedar & try. Philadelphia Reed v. Bethlehem & New 166, City Ry. Iowa U.S. England R.R. (3d 939 F.2d 1706, 1708, (1969) S.Ct. 23 L.Ed.2d 176 Cir.1991). However, have not hesitated Act); Thompson, Urie v. (Safety Appliance reject employ claims of railroad 163, 188-89, 1034- S.Ct. clearly ees their claims were not when (1949) (Safety Appliance 93 L.Ed. 1282 Felton scope within the of the FELA. Act); Seaboard Inspection Boiler Act and Pennsylvania Transp. v. Southeastern Horton, Air Line Co. Auth., (3d Cir.1991) (urban 635, 639, (1914) 58 L.Ed. 1062 subway is not interstate common carrier (Safety Appliance Act and Hours of Service FELA); Holliday v. Consolidat under the Act). What is less clear is whether Cir.1990), Corp., 914 F.2d ed Rail applies general workplace FELA when — denied, U.S. -, rt. ce safety statute such as OSHA is violated. (1991) (work-related 112 L.Ed.2d 1057 FELA did not constitute under the The outer bounds of were stress Ker- Kichline v. Rail FELA); Consolidated examined Court (3d Cir.1986) Corp., case, nan. a seaman was killed liability. "negligence ‘The basis of liabili- have used the terms terms of absolute 3. Other courts negligence.'") per liability” interchangeably. ty remains se” and under the Act is and “absolute similar, omitted). (citation Although concepts v. Atlanta & are we will But see Carter the two "negligence opinion, use se” in this since St. A.B.R. 229, (negligence is "a FELA is a statute. See 94 L.Ed. 236 J., 451-52, (Harlan, confusing simply for what is a violation U.S. at dissenting) S.Ct. at 406-07 label ("Congress legislated duty"). has not an absolute compensation any workmen’s law suit affect of limitations bars (FELA’s statute enlarge or diminish or continuing or suffered though plaintiff even affect manner the common law or any other discovery of after to diesel fumes exposure duties, or liabilities statutory rights, illness). any employees under employers appear to face, FELA does not itsOn diseases, respect injuries, or statutory duty the derivation of, employees arising out or in death OSHA, OSHA seems since care from course, employment. “statute be a enacted 653(b)(4) 29 U.S.C. § However, if even employees.” imposing negli- must decide whether We broadly, be construed could for an se under the FELA gence per equation. We must only one side “enlarge diminish or af- applicability OSHA’s also examine whether liability of a other manner” the fect express lan- by FELA is limited to the employer. guage of OSHA. analyzing report section The Senate essentially restates that B. guid- additional provision gives little Safety and Health Occupational The Congressional as to intent: ance response to an in 1970 Act was enacted provides that This subsection act injuries and alarming epidemic of industrial not be deemed to workmen’s shall affect Safety Health Occupational and deaths. or common law or compensation laws Horace A. Bokat and (Stephen 32-33 Law statutory rights, or liabilities of duties III, eds., 1988). Like other Thompson A. any employees under law employers and statutes, construed is to be OSHA death, relating injuries, to diseases workplace ensuring broadly in favor employ- stemming course Erectors, Inc. Century safety. Steel ment. 1399, (D.C.Cir.1989); Dole, 1403 888 F.2d 91-1282, Cong., 2d Sess. S.Rep. No. 91st Constructors, Occupational Inc. v. Fluor (1970), Cong. reprinted in 1970 U.S.Code Comm’n, 861 Review Safety and Health 5177, (emphasis add- & Admin.News Cir.1988); (6th ITT Grinnell F.2d legislative ed). only piece of The other Donovan, F.2d Corp. v. 653(b)(4)is a history pertaining to section Cir.1984) (all suggesting liberal construc (now of Labor letter from then-Solicitor OSHA). Although covers a tion of H. judge) Silberman D.C. Circuit Laurence range workplace injuries, was wide Subcommit- the Chairman of the House to all-encompassing stat to be an not meant tee on Labor: Dept., AFL- Industrial Union ute. See This is in re- Mr. Chairman: Dear Inst., 448 Petroleum v. American CIO your request for infor- sponse to recent reply to Mr. upon base mation (“[OSHA] de was L.Ed.2d Counsel, Bailey, Legislative E. James ab require employers signed to Manage- Society of American Insurance workplaces_”); Tita solutely risk-free ment, Inc. Corp. Usery, nium Metals letter, Bailey expresses con- (“OSHA In his Mr. (9th Cir.1978) de was never been, legislation deal- proposed that under cern it have eliminate signed, nor could health and accidents.”); occupational v. Ken occupational Usery all claim viola- injured employee could “an Corp., 577 F.2d Copper necott legisla- of the requirements of the Cir.1977)(“[OSHA] not hold the tion (10th does bypass applicable state tion thus responsible prevention for the and benefits compensation accidents.”). Congress pro workmen’s Specifically, all Federal courts.” through an action stat following limitation vided the ute’s reach: the Adminis- provisions of S. proposed Occupational chapter shall be con- tration’s Nothing in this way in no Act of Health supersede or in manner strued to present status the law with regulations with other common affect regard compensation leg- workmen’s schemes other than private islation or tort actions. worker's compensation. [Section 653(b)(4)] is satisfactorily explained as Hearings on H.R. H.R. H.R. protect intended to compensa- worker’s 4294 and H.R. 13373 before Select Sub- tion Labor, competition acts from comm. on Education Cong., pri- 91st a new Sess., right 1st Pt. vate add- action keep and to ed) (quoted in regulations Pratico v. Portland Termi- from having any effect on (1st Cir.1985)). nal operation compensa- worker’s courts interpreted Some which have tion scheme itself. scope of OSHA have viewed the Silberman Thus, Id. at 266. Pratico allowed an being dispositive Congressional letter as OSHA violation to constitute disagree. intent. We per se and bar contributory negligence un- Appeals Court of for the First Cir der the FELA. Id. at 266-68. interpreted cuit has the Silberman letter as We, analysis find the of Pratico to be indicating only purpose unpersuasive, since agree we cannot “enlarge or language diminish or affect” intended 653(b)(4) effect of section section was to ensure that OSHA was to the creation of private private did not create a cause of action right of action which bypass work bypass which would compensa workers’ compensation. ers’ Pratico, tion. 783 F.2d at The First 266. In Prati Circuit’s co, a employee analysis defies principles as the traditional of stat jack result of a defective used utory to lift a interpretation which dictate that plaintiff Pratico, railroad car. The in like courts first look at language the statute’s Ries, alleged regulation that an OSHA plain meaning and the language. that violated and the negli violation constituted Consumer Product Comm’n v. gence per se under the FELA. Inc., Sylvania, 102, 108, GTE 447 U.S. 2051, 2056, S.Ct. (1980). 64 L.Ed.2d 766 The court held that OSHA does not ex- “[Ojnly the most extraordinary showing of pand employers’ liability merely since it contrary [legislative intentions from existing duty defines an actually without histo creating duty: ry] a new justify would a ‘plain limitation on the meaning’ statutory language.”

Allowing regulations OSHA to act as States, 70, 75, Garcia v. United “guides for the determination of stan- 479, 482, 83 L.Ed.2d 472 care,” dards of should not be as viewed expanding Immigration See also and Naturaliza employers. — negligence The doctrine of Elias-Zacarias, U.S. -, se does tion Serv. not have the effect of turning -, reason- 117 L.Ed.2d 38 able, nontortious behavior into unreason- (1992) (“In statutes, construing must, ‘we able, tortious behavior. simply Rather it course, assumption start with the that presence allows the regu- legislative purpose expressed by lation to serve as evidence irrefutable ordinary meaning ”) of the words used.’ particular that conduct is unreasonable. (citation omitted); Sylvania, GTE (“Absent (citation clearly at 100 S.Ct. at 2056 a omitted). Id. at 265 Faced with expressed language 653(b)(4) legislative the restrictive intention the con of section reach, appear which would to limit trary, language ordinarily OSHA’s that must be the First Circuit looked to the Silberman regarded conclusive.”). Furthermore, as arriving letter in following interpre- at the against Court has counseled 653(b)(4): tation of section giving weight contempo too much to “the single legislator raneous remarks of a who legislative history Our review of the bill,” sponsors a suggests highly that it is id. unlikely non-legislator that considered the interaction a as the much less such every in other instance. OSHA would of Labor.4 Solicitor interpretation is that the plausible Another 653(b)(4) clearly states Section only construing the letter was Silberman or diminish “enlarge or shall not “enlarge diminish preceding or clause the common any other manner in affect clause, in it stated that which is or affect” duties, or statutory rights, liabilities law or chapter in shall be con- “[njothing If a viola- employees.” employers and any could in manner af- supersede consti- an OSHA tion of strued contributory and bar compensation tute law.” any workman’s fect FELA, it be would negligence under event, disagree with respectfully In be the effect would almost axiomatic holding of the First Circuit Pratico. stat- or affect” the “enlarge or diminish employer. liability of the duty or utory C. argument Ries’ agreed if we with Even per se for an imposing examining scope of After “enlarge” em- not OSHA violation respectively, it is clear to this merely an liability, since it defines ployers’ for a Congress did intend court that pressed say are hard existing duty, we regulation to result of an OSHA liability. Fur- not “affect” that it would per se and bar contributory negligence thermore, a bar of FELA. Such a viola- negligence under the loss Amtrak’s which transforms only which be evidence could tion $37,130 $9,282.50 verdict clear- to a verdict trying by jury determine considered “affect,” “enlarge,” if not ly would negligently.5 acted short,- whether rea- liability. defies employer’s Torts, (Second) Restatement to construe section son by- which would private 288B(2) (1965). actions precluding Had Con- compensation. pass workers’ Aliquippa & relies Eckert Ries result, it would not such gress intended Cir. 828 F.2d 183 Southern 653(b)(4) in such section have drafted 1987), cited he contends court sweeping terms. at 187. Eckert approval. Id. Pratico that the Silberman Assuming arguendo issue of whether the narrow involved inter- significance, better some letter has and Safety Appliance Act the violation of the is that of section pretation thereunder promulgated regulations pre- language “enlarge, or affect” diminish negligence un could of cludes, things, the creation among other above, the FELA. As discussed der the by- which would private cause of action long that the Safe has held Supreme Court compensation. The Silber- pass workers’ under safety statute Act is a ty Appliance solely com- with workers’ dealt man letter noth holding in Eckert did Our the FELA. con- that was pensation because con that well-settled than affirm more of raised at time cern which validity Eckert 187. The Id. at clusion. that the letter fact passage. The OSHA’s Pratico, our way on and depended in no one which OSHA just instance mentions most, was, mis Pratico on reliance compen- namely workers’ apply, would not placed. necessarily sation, mean does not Torts, 288B, (Second) subsect. comment on letter is also significance the Silberman

4. The (“More stat- (2) frequently in the in the than case not included questionable, since was ordinances, legislative requirements admin- published version of OSHA’s official history. utes or Labor, 92d adopted by Subcomm. See Senate regulations are not istrative Sess., Legislative History the Occu- Cong., 1st defining conduct standard of definite as court (Comm. Safety Health Act pational actions, accepted af- but are 1970). Print evidence.”). fording Evidence relevant itself, violation, not "af- does evi- OSHA violation as of an 5. The admission that the trier liability; inferences it is fect” not contradict our dence of “affect" evidence that from draws fact "enlarge or diminish interpretation of the liability. language of OSHA. Restatement affect" Although appeals no court of other (D.C.Cir.1987) than F.2d (“FELA ... squarely the First Circuit has addressed statute, a tort remedy not a safety stat- the issue of whether a violation of an ute.”). Despite expansive language of constitutes Supreme Court has never ex- FELA, position se under the our is. statutory tended the duty of care of a supported by decisions of the Courts of employer beyond railroad few stat- Appeals for the Fourth and Sixth Circuits. specific utes to the railroad industry, and Albrecht v. Baltimore v. R. Ohio 808 we are reluctant imply such an extension (4th Cir.1987) (OSHA vio in the express guidance absence of negligence per lation did not constitute argues Court. Ries that Kernan al- se);6 Industries, Inc., Minichello v. U.S. lows a of negligence per se for a (6th Cir.1985) (in product 756 F.2d violation of a statute other Safety than the cases, liability regulations “OSHA can nev Appliance Inspection and Boiler Acts. Al- er a basis for because Con though correct, this is technically Kernan gress specified they not”). has should case, was a maritime not a railroad case. Burlington See also Bachini v. Northern It imposition involved the CV-87-248-GF, R.R. No. 1990 WL duty of care reg- established a maritime (D.Mont., 7, 1990); March Bertholf (a ulation regulation) Coast Guard in a suit R.R., Burlington F.Supp. Northern arising (the under a maritime statute Jones (E.D.Wash.1975); Hebel v. Con Act). The necessarily Court beyond looked rail, (Ind.1985); 475 N.E.2d 652 Wendland Appliance and Inspection Boiler Services, Inc., Ridgefield Constr. Acts, since those statutes established safe- (1981) (all finding Conn. 439 A.2d 954 ty requirements for appliances train not to be meaningless boilers and were in the mari- FELA). under the time Similarly, context. the Coast Guard if Even OSHA were not limited regulations in prescribed Kernan which express language 653(b)(4), of section height ship lights above the water would be reluctant to construe OSHA as a have no relevance to this case or other safety statute under the since we involving case question general workplace regu whether Despite the liberal construction of the statutory duty lations can create a of care Court, FELA by we take note under the FELA.7 Long See Gallose v. Court’s reluctance to extend the Island Cir. See, 1989) (“[T]he FELA in other areas. e.g., FELA was never Monessen intended to employer absolutely hold an Morgan, liable for Southwestern Co. v. injuries.”); workplace McKenna v. 100 L.Ed.2d 349 Wash Auth., (no suits); ington prejudgment Metro. Area Transit interest in FELA dicta, probably provides 6. The conclusion of Albrecht is The FELA a more liberal standard of law, merely recovery since the in that case chal- than the common because a court lenged negligence per regard the admission of the OSHA as can find se to "without negligence. injury flowing evidence of 808 F.2d at 331. The whether the from the breach was sought sponte prevent.” the nan, Fourth Circuit sua raised the issue of the statute Ker 433, negligence per 355 U.S. at 78 S.Ct. at 398. se. disagree state- We also with the concurrence’s disagree 7. We with the concurrence’s assertion liability may upon ensue ments that ”[a]bsolute interpretation that under our any statutory violation” and that negligence per merely "ups "common law would a more liberal ante” for se the recovery standard than FELA.” Concurrence Im- defendants. Concurrence at 1166-1167. case, "slip posing negligence per at 1166. In a common law and fall” all viola- se for draconian, negligence per automatically imposed quite se is not tions would be and we doubt Negligence punish for a violation of a statute. intended to railroad em- that severely only applicable plaintiff ployers the FELA. se is when the so when it enacted However, possibility persons open that are in the class of risks we leave general encompassed by Congress might someday enact a work- the statute which is violated. al., unequivocal Page place safety intent W. Keeton et Prosser and Keeton on the statute with 36, (5th 1984). employers. Law Torts at 224-27 ed. that to railroad 1164 Health Re Occupational Safety & Inc. v. 419 U.S.

Kelley v. Southern Pacific Comm’n, (1974) 1364, (5th F.2d 1370-71 view 472, 498 583 42 L.Ed.2d 318, 95 S.Ct. which was Cir.1978). Thus, carrier of appeals, motor several courts (employee of FELA); by covered not one, of railroad agent including have held that OSHA City Rapids & Iowa v. Cedar Crane of action private cause does not create 1706, 23 L.Ed.2d 164, 89 S.Ct. U.S. 395 employer for a violation. against an (railroad (1969) has 176 Melerine, 706, 709; United Steel F.2d 659 nonemployee); in suit gence defense Marshall, F.2d America v. 647 workers of Co., 362 Line v. Atlantic Coast Ward denied, (D.C.Cir.1980), cert. 1189, 1235-36 (1960) 789, 4 L.Ed.2d 820 396, 80 S.Ct. U.S. 3149, 3148, 69 453 U.S. repaired curiam) (company which (per Corp. v. Occu (1981); Dravo L.Ed.2d 997 agent of rail- not for railroad tracks Health Safety & Review pational FELA); Pennsylvania R.R. Co. road under Comm’n, n. 2 Cir. F.2d 1230 613 O’Rourke, 97 v. Paper Regis v. St. 1980); Jeter injured while (1953) (brakeman L.Ed. 367 Byrd v. Cir.1975); (5th F.2d not navigable waters car float on aboard Inc., (4th Mills, F.2d 1323 Fieldcrest FELA); Chesapeake & Ohio covered Bartley, v. curiam); Russell Cir.1974) (per 587, 49 S.Ct. Stapleton, Ry. Co. Cir.1974). (6th For (violation of state L.Ed. 861 to serve an OSHA violation court to allow negligence under is not child labor suit for as basis employ- Likewise, FELA). extension implied create an under the FELA adopt us Ries would have which er action, upset the and thus private cause FELA. the bounds exceeds enforcing work Congressional scheme for “new Pratico view Moreover, penal through administrative place safety be should as OSHA safety statutes such legislatively say We cannot ties. as well-estab- same treatment given the are violations sanctions created incorrect. lished statutes” supplemen require judicial insufficient and as safety statutes such 264. Railroad any “useful say we tation nor can Inspection Boiler Safety Appliance policy Congressional purpose related position vis-a- occupy the same not Acts do tacking yet Indeed, served goals OSHA. vis the FELA does Otto these two held that vehicle.” has another enforcement Supreme Court substantively Inc., “are F.Supp. Specialties, statutes railroad Federal form amendments if not in (N.D.Miss.1974). Urie, Act.” Liability Employers’ Federal Rail- Finally, note that 189, 69 S.Ct. at jurisdic- delegated has road Administration OSHA. cannot be said about The same Safety and Health Occupational tion to the Boiler Appliance, Furthermore, safety pertaining Administration Acts are Service Inspection and Hours of- shops and associated yards, “railroad be unlaw- of “it shall in terms phrased all respect to conditions fices ... with a stat- phrasing of ful,” usual closely related so rooted nor se. establishing ute 10,587 (1978). Fed.Reg. Act); operations.” (Safety Appliance U.S.C. §§ jurisdic- has Act); However, the fact OSHA (Boiler Inspection 45 U.S.C. § lead necessarily 63a(a) (Hours of Service in area does not 62(a), tion this U.S.C. §§ wording. we per se. As important negligence Act). lacks this to a OSHA regula- stated, an OSHA a violation of have elaborate has established evidence of admitted as could tion be criminal civil and administrative system of even serve violation could gence. The in violations punishing OSHA penalties for penalties administrative the basis Occupational 666. U.S.C. § However, allowing the against Amtrak. Indeed, Law, supra, at 288-328. & Health negligence constitute to preventive rather of OSHA purpose in a negligence contributory Insulation, se and bar B compensatory. B & than contrary gence per be to both the se. (Second) FELA suit would See Restatement Torts, (1965). Negligence per and OSHA. FELA se in a § FELA simply action means that the viola- III. statutory tion of a duty imposes absolute liability on the employer and he is not hold is not a safe We by any showing excused of care. O’Don- ty a statute under thus violation Elgin, nell v. Joliet E. & U.S. regulation not constitute an OSHA could 70 S.Ct. (1949). 94 L.Ed. 187 neg se and bar negligence Therefore, ligence. we will reverse the In v. Kernan Dredging American However, judgment of the district court. S.Ct. L.Ed.2d 382 of the OSHA was (1958), the violation Kernan was killed because Ameri- Am properly admissible as evidence Dredging can navigation regula- violated a thus would not negligence, trak’s a retrial The tion. held Court necessary. jury’s verdict Since the negligence per violation constituted se un- liability specified sheet allocation Traditionally, der FELA 51. common § Amtrak, Ries and will remand between the negligence per law limited se doctrine to to court with instructions the district to that the designed statute was judgment of Ries in enter a new in favor prevent. See Restatement Com- $9,282.50. (c). the amount Court, however, ment on Clause The rejected this and concluded “the basis of NYGAARD, concurring. Judge, Circuit liability statutory is a violation of agree I the result reached regard without to whether the flow- reasoning its the ex- majority, and with from the violation OSHA, plain meaning tent that sought guard against.” 653(b)(4),precludes finding of U.S.C. § at 401. barring negligence per se of contrib- Congress promulgated FELA to But utory negligence a FELA action. recovery liberal workers. majority unnecessary reaches con- two Hence, if principles restrictive common law FELA scope it contracts the clusions: they are not purpose ap- undermine limiting the liability by applicability plied. See id. at See also 45 398. U.S.C. per se to violations of doctrine (limiting assump- the doctrines of §§ industry”; “specific to the railroad statutes contributory negli- risk tion of the and, scope expands the to allow of OSHA gence). Because FELA is a broad remedial as evi- standards be admitted statute, Rogers Missouri FELA action. Be- dence of Pacific 500, 508-10, these unwar- cause I results are believe 449-50, (1957), 1 L.Ed.2d its current and under the ranted under law scheme ensures that a common carrier’s OSHA, separately. plain meaning of I write include, extend, spectrum duties recovery. I. common standard context, limit majority seeks to action for rail- FELA creates cause of negligence per se doc- applicability killed or employees who have been way of stat- FELA to violations trine to injured “by reason of defect or insuffi- specific to utes ciency, negligence.” due [] that, deciding Liability is common law assumes based on 51. not to principles. Chesapeake & Ohio whether doctrine, the act is a Stapleton, nature Co. Nothing factor. 73 L.Ed. 861 determinative the con- To from the mandates this consideration. employer’s duties arise either to interact FELA general, duty trary, of care or intended common specific not specific, statutory duty. they arise with statutes When FELA 53 and statute, may example, for principles So § common law respectively that provide violation of that treat § assumption and of the risk shall se. See Thompson, Urie v. apply employer not where the violated 93 L.Ed. 1282 “any safety enacted for the statute added.) (Emphasis Also, employees.”1 employer Keman the argued similar- Court has said “the na ly. It contended that these statutes stand ture of the Acts violated is not a control special in a relationship by with FELA vir- ling consideration.” 78 S.Ct. at tue of FELA “any refers to controlling is the 401. What is violation of statute enacted for the safety of employ- statutory obligation causally and a con Thus, only ees.” violations of these stat- at 398. The injury.

nected Id. basis for utes, contended, impose negligence per majority’s limitation cannot be found in se. rejected argument: The Court FELA or Keman. First, entirely relates to the de- § [54] risk, assumption fense of fallacy reasoning apparent abolishing of its is defense where the produces. an odd result it when we consider caused employer’s negligence byor Suppose employee an is because an “vio- lation ... of designed enacted for employer violates a statute employees....” (for It industry directed at the but not § [51] OSHA). FELA which action, creates the cause example, In a common law section, face, action and this employee if the can its show that his any suggestion barren of designed pre- was one the statute was vent, caused violation of any statute are apply. then se will specially.... be treated action, Yet in a FELA he does enjoy not “spe- Second, the same the statute was because argued if is the Safety industry.” majori- cific to the railroad Appliance Inspection and Boiler Acts are ty thus FELA in a construes manner that special safety statutes and may thus eas- common law would a more liberal ily be assimilated to the FELA under recovery standard of for violations of stat- general principles. common-law But ” utory duties than FELA. But see id. at there magic is no in the “safety. word (equity considerations have moved “plainly reject[] many courts to of the re- (first emphasis 78 S.Ct. at 400 original necessary fined distinctions in common-law emphasis second Likewise doctrine”); tort 45 U.S.C. 54. §§ magic there is no “injury.” the word majority’s reasoning, Under the employ- Though does not articulate may ee establish se if she assumes, so much as it rationale broke her ankle employer because her vio- places for the limitation it seems to be Safety Appliance Act, lated the but she FELA protects based on the belief that may not so establish if she broke the same against “injuries” types certain and en- employer ankle because her violated a stat- type “safety.” sures a certain See Ma- ute industry not directed at the but de- jority at 1163-1164. Therefore the ordi- signed employee safety. nary “slip fall” cases cannot be con- Whether negligence per resulting sidered in the same class as those doctrine is not confined some notion industry from violations of directed stat- protects that FELA against types certain majority implies utes. The that FELA “injuries” type ensures certain special relationship stands in a with certain “safety.” Liability springs from breach Act, Safety Appliance statutes such as the duty: seq., 45 U.S.C. 1 et and the Boiler In- §§ Act,

spection seq., theory 23 et is that where §§ [T]he violations of which lead to employers’ conduct falls short of the 653(b)(4), specific railway guage 1. I note that OSHA is not to the of OSHA OSHA would inter- industry, promulgated but was "to assure ... act with FELA and affect duties and working safe and healthful conditions.” liabilities. 651(b). prohibitory U.S.C. § Absent the lan- logical FELA. required of him se under The reach of such high standard fault, part, Act, proposition may in whole or and his a lead to absurd results. I liability ensues. And this injury, suggest only majority’s suggested that the causes fault is a vio- whether the bright-line unnecessary result follows demarcation is the more statutory duty a appeal lation of decide and is unwarranted un- care, acting of general duty with current law: der employee, as much as employer owes the Congress saw fit to enact a statute of care, duty acting of duty with terms, general leaving the most thus obligations. statutory his complying with large duty measure to the courts the fashioning liability injured employ- nature based remedies for By at 398. its Id. duty analogous general, common law ees in a manner to the devel- a breach per the trier opment se since of tort remedies at common law. cannot be determine the stan- general congres- of fact must first what But it is clear that the conduct, The duty, is. dard of sional intent was to liberal recov- statutory duty workers, stands on a different ery and it is also duty. defines the Ab- ground; the statute the creation clear that intended upon finding liability may ensue solute remedy, of no static but one which would statutory violation. any developed enlarged to meet changing changing conditions and con- Terminal In Pratico v. Portland industry’s cepts toward its work- (1st Cir.1985), the Court of ers. concluded, for the First Circuit Appeals applica- presents no to the “FELA obstacle (citations omitted). at 398 negligence per se doctrine to

tion development like common (see Part III Id. at 264 OSHA violations.” proceed principles, should on a case 262-64) agree.2 I pp. case, reflect statute basis to se, per we do not By applying negligence The ma- changing conditions and values. it, the drastically enlarge liability. Without not need to restrict FELA liabili- jority did liability. Negli- may still find trier of fact plain ty in the manner that it did for the simply “ups the ante” when- gence per se language precludes a of OSHA § spelled specific, out legislatures have ever FELA se obligations. statutory v. Baltimore & Ohio action. Albrecht (4th Cir.1987) suggests, “Imposing majority (“negligence per se rule is inconsistent with statutory for all violations gence 653(b)(4)”). overjustifying quite Majority § [OSHA] draconian.” would be clear, may statutorily what is is the inevitable n. 7. But harsh too unnecessarily scope limited the lives, limbs, have and livelihoods consumption of potential for future and its railway industry. by the See Wilkerson myself from 413, development. Thus I divorce 53, 68, 69 S.Ct. McCarthy, 336 U.S. suggestion applicability that the (1949) (Douglas any concur- L.Ed. 497 to vio- per se doctrine is limited do not distin- ring). These human costs specific vio- nature of lations of statutes guish between the railway indus- Employment lations. II. employers perilous; expect try remains highest standard care. maintain the majority’s asser- disagree with the I also statutory stan- observing This includes admitted may be tion that OSHA violations industry as specific to the dards of care that an to show into evidence with statutory obligations as other well 653(b)(4) pre- negligently. acted diligence. equal in a FELA action. of OSHA cludes such use “in shall not that OSHA provides It every violation suggest I do law or stat- any ... common manner statutory duty gives rise to affect 653(b)(4). Id. interpretation of OSHA application precludes court’s 2. But I think OSHA V). (see IV and Parts disagree the Pratico at 264-68 this doctrine and duties, (Em- utory rights, Comm’n., or liabilities.” & Health Review 613 F.2d added.) phasis majority relies on the Cir.1980) (OSHA n. 2 does not 653(b)(4) plain meaning of to conclude: private action). § create a cause of See also “imposing negligence per if Even se for an Pedraza v. Shell Oil ‘enlarge’ OSHA violation would not em- (1st Cir.1991) (OSHA preempt does not ployers’ liability pressed ... we are hard laws). By state tort affecting the duties say that would not ‘affect’ [such result] give rise liability laws, under other liability.” Majority plain 1162. The construes OSHA to accom- meaning statutory construction, rule of plish indirectly that which OSHA cannot do applied, once cannot be abandoned when it directly. is convenient to do so. See Public Citizen Justice, Department v. III. 2558, 2574, 105 L.Ed.2d 377 (1989) (Kennedy concurring). The same I believe that the breach of statutory reasoning should the introduction duty may impose negligence per se under of OSHA standards as evidence. intrinsic, prohibitory pro- absent vision, 653(b)(4) but that OSHA is such a is axiomatic §

It that all evidence of provision precludes plaintiff gence designed to affect introducing evidence of duty plaintiff. calculus and a defendant’s OSHA violations in join FELA action. I See Restatement Comment on the result sub- reached majority. section If such introduction results in negligence, changes If, employer liability. standard of how-

ever, it would not affect

calculus, why would one even seek to intro- Indeed,

duce it in the place? only first why

reason is to show a breach of an duty thereby imply a common (“The and breach. See id. fact [statutory] precautions that such have been GLUCK, Clarke, Harry Simon E. John R. prescribed purpose may for another be a Ganderton, Williams, G. Robert K. relevant fact for the consideration of the Lund, George Richards, E. Jack Rich fact, indicating triers of that a reason- Jackson, Derenzi, ard Charles S. John man pre- able would have taken the same Deluca, Lapic, Angelo Smolnik, Gwen case.”). particular cautions in the To the Maloney, Caplan, John N. Lee William extent the introduction of stan- Howe, Jr., Joseph Barney, E. G. Law dards affects the inferences drawn Atkins, Wagner, rence G. Harold D. trier, Majority see at 1162 n. it affects Legory, Wright, John E. and Mark duties and liabilities. behalf of themselves and all others sim This plain contradicts not mean situated, ilarly 653(b)(4) of OSHA but also OSHA’s v. statutory purpose. Section makes CORPORATION, Unisys UNISYS Pen clear that OSHA was not intended to rede Plan, sion Administrative Committee of employer’s fine or affect an common law or Unisys statutory duties. Pension Plan and all Mem overriding pur OSHA’s pose prevent bers Thereof and workplace injuries. Retirement Commit Burroughs Employees’ Whirlpool Corp. Marshall, tee of the Re 11, 100 L.Ed.2d 154 tirement Income Plan and All Members Thereof, (OSHA nature.”). Miller, prophylactic “is It is Kenneth L. A. Jack Blaine, Losey, enforceable administrative civil and Michael R. John J. It, however, Riesenfeld, penalties. criminal Loughlin, does not Stefan C. Michael Jones, remedies to Capo, Stanley employees. R. Walter J. Williams, Corp. Occupational See Dravo Bierly, Richard H. Bobette

Case Details

Case Name: Charles A. Ries, III v. National Railroad Passenger Corporation, A/K/A Amtrak National Railroad Passenger Corporation

Court Name: Court of Appeals for the Third Circuit

Date Published: Apr 27, 1992

Citation: 960 F.2d 1156

Docket Number: 91-1495

Court Abbreviation: 3rd Cir.