Niсole Desher (Guardian ad litem of Patrick Devlin) v. Southeastern Pennsylvania Transportation Authority (SEPTA)
No. 1529 C.D. 2018
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
June 27, 2019
HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge
Argued: June 6, 2019
BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER, Judge
Nicole Desher (Appellant), as guardian ad litem of Patrick Devlin (Devlin), appeals two orders of the Court of Common Pleas of Philadelphia County (trial court). Both orders arise from an action Appellant commenced in the trial court against the Southeastern Pennsylvania Transportation Authority (SEPTA), claiming damages under the statute known as the Federal Employers’ Liability Act (FELA).1 The first order, dated June 18, 2018, granted SEPTA‘s motion in limine to preclude the testimony of Appellant‘s expert witness. The second order, dated June 19, 2018, granted SEPTA‘s renewed motion for summary judgment and dismissed Appellant‘s case. For the reasons that follow, we affirm trial court’ order granting summary judgment in favor of SEPTA.
I. BACKGROUND
At the time of the events giving rise to this case, SEPTA employed Devlin as a welder and rail maintainer. On the morning of October 20, 2014, two other SEPTA employees—Antonio Gonzalez (Gonzalez) and Lafayette Rhoads (Rhoads)—were working at SEPTA‘s Courtland Yard when they discovered Devlin slumped over in the cab of his welding truck. He was cyanotic, was not breathing, and had no pulse. Gonzalez called 911 from his cell phone, and the emergency dispatcher instructed the men to lay Devlin on the ground and begin CPR and rescue breathing. The two men removed Devlin from the truck, and Gonzalez immediately began to administer CPR and continued to do so until paramedics reached Devlin at 7:54 a.m.—eight minutes after Gonzalez‘s 911 call. Within two minutes of their arrival, the paramedics detected ventricular fibrillation in Devlin‘s heart and delivered a defibrillating shock using their own automated external defibrillator (AED). Although at some point during these events someone retrieved and brought to Devlin‘s location an AED kept in a building within 100 yards of where Devlin was discovered, no one used
The record in this matter also establishes that beginning in 2007 and continuing to the present, SEPTA has had in force an AED policy as part of its Accident and Illness Prevention Program (AIPP). The AIPP directs the placement of 62 AEDs at various SEPTA facilities and provides for maintenance and inspection of AEDs and ongoing training for five employees per AED. (Reproduced Record (R.R.) at 248a.) SEPTA‘s assistant general manager of safety testified in anothеr proceeding that SEPTA‘s practice has been to provide AED training to at least one employee per shift at each AED location. (Id. at 230a-31a, 235a-36a.) A former SEPTA employee involved in the implementation of the AIPP avers that employees on each shift were to be informed of the location of the AED at their facility and of the identities of their co-workers who had been trained in its use. (Id. at 252a.)
Appellant filed an action with the trial court, seeking to recover damages for Devlin‘s injury under the FELA2 and alleging that SEPTA failed to meet the proper standard of care by failing to implement the AIPP. Appellant argues that SEPTA‘s fundamental duty under the FELA to provide its employees with a reasonably safe place to work includes a duty to implement safety rules to address foreseeable harm and that the AIPP is such a safety rule. Appellant further alleges that SEPTA breached that duty by failing to train its employees adequately pursuant to the AIPP.
In anticipation of trial, Appellant secured the expert testimony of Franklin A. Darius (Darius) concerning SEPTA‘s failure of its alleged duty. Darius’ testimony was to include, inter alia, discussion of a first aid regulation promulgated by the Occupational Safety and Health Administration (OSHA), which provides: “In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. Adequate first aid supplies shall be readily avаilable.”
SEPTA filed a motion in limine to prevent Darius from testifying. The trial court
Appellant also secured evidence concerning SEPTA‘s implementation of the AIPP. Appellant deposed Rhoads and Gonzalez concerning their experiences with the AIPP prior to Devlin‘s injury. Rhoads, employed by SEPTA at the Courtland Yard for about 12 years before these events,4 testified that SEPTA had never informed him of thе presence of an AED at the Courtland Yard and that he became aware of it only “after all of it was over.” (R.R. at 324a.) Gonzalez, who had worked at the Courtland Yard for six years before these events, testified that he was aware of the presence of an AED at the Courtland Yard, but he added that SEPTA had never informed him of the identities of his co-workers who had been trained in its use and that he did not recall SEPTA definitively communicating the AED‘s location to him. (Id. at 253a-54a.)
Following the trial court‘s rulings on various pretrial matters, SEPTA made a renewed motion for summary judgment. The trial court granted summary judgment because it concluded that SEPTA‘s FELA duty did not include “anticipating [Appellant‘s] heart attack[,] nor did it mandate providing assistance to him in the form of the use of an AED.” (Br. for Appellant, trial court op. at 11.) Essentially, the trial court‘s conclusion rests on two determinations, both set forth in its Rule 1925(a) opinion: (1) the AIPP is not a “safety rule” which SEPTA has a duty to enforce under the FELA (id. at 10.); and (2) Appellant “failed to show that [SEPTA] had failed to enforce the language of [the AIPP].”5 (Id.)
II. ISSUES
On appeal to this Court, Appellant raises three issues: (1) whether the trial court, in granting summary judgment, erred in concluding that SEPTA did not owe a duty to implement the AIPP properly as part of its duty to provide a reasonably safe workplace under the FELA; (2) whether the trial court, in granting summary judgment, erred in deciding on its own, rather than allowing a jury to decide, whether Appellant showed that SEPTA breached its duty
III. DISCUSSION
A. Waiver
SEPTA first argues that Appellant has waived all issues on appeal because the language Appellant usеd to raise those issues in its brief differs from the language it used in its Pa. R.A.P. 1925(b) statement. Specifically, SEPTA maintains that the inclusion of the phrase “safety rule” in Appellant‘s Brief—a phrase which does not appear in Appellant‘s Rule 1925(b) statement—raises a novel issue which should not be considered on appeal. Additionally, SEPTA asserts that “[t]he listed issues in [Appellant‘s Rule] 1925(b) [s]tatement should, furthermore, be found waived due to vagueness.” (Br. for Appellee at 18.) SEPTA does not further develop these waiver argumеnts.
A party‘s failure to include an issue in its Rule 1925(b) statement waives that issue on appeal.
B. Summary Judgment
Appellant argues on appeal6 that the trial court erred in granting SEPTA‘s renewed motiоn for summary judgment. Specifically, Appellant alleges two distinct errors on the part of the trial court: (1) the trial court erred in concluding that SEPTA did not owe a duty to implement the AIPP properly as part of its duty to provide a reasonably safe workplace under the FELA; and (2) the trial court erred in deciding on its own, rather than allowing a jury to decide, whether Appellant showed that SEPTA breached its duty under the FELA by failing to implement the AIPP properly.
Generally, “[s]ummary judgment is properly granted ‘whenevеr there is no genuine issue of material fact as to a necessary element of the cause of action,‘” having viewed the record in the light most
Appellant first argues on appeal that SEPTA has a duty under the FELA to implement the AIPP effectively because the AIPP is a “safety rule” that SEPTA voluntarily adopted to address a foreseeable risk of injury. In response, SEPTA argues that the AED-related provisions of the AIPP are not a “safety rule” because, unlike safety rules in other cases (as, for example, procedures for lifting heavy objects), they do not purport to address a harm sustained because of the performance
of an employee‘s work duties. Therefore, SEPTA argues, the FELA duty to provide а reasonably safe workplace does not require SEPTA to provide AEDs to its employees.
Whether a duty exists is “a legal determination, assigned in the first instance to the trial court and subject to plenary appellate review.” Sharpe v. St. Luke‘s Hosp., 821 A.2d 1215, 1219 (Pa. 2003). “Under the FELA, an employer has the duty to provide its employees with a reasonably safe work environment and safe work equipment.” Manson, 767 A.2d at 3; see Bailey v. Cent. Vt. Ry., 319 U.S. 350, 353 (1943). The FELA duty to provide employees with a reasonably safe workplace is well established and beyond dispute, but, critically for the instant case, the contours of that duty “turn[] in a general sense on the reasonable foreseeability of harm.” Ackley v. Chi. & N. W. Transp. Co., 820 F.2d 263, 267 (8th Cir. 1987) (citing Gallick v. Balt. & O. R.R., 372 U.S. 108, 117 (1963) (“[R]easonable foreseeability of harm is an essential ingredient of [FELA] negligence.“)).
In Gallick, the United States Supreme Court upheld a jury‘s finding of employer negligence under the FELA. The railroad
“[The] requirement [of reasonable foreseeability] has been satisfied in the present case by the jury‘s findings of negligence in maintaining the filthy pool of water. The jury had been instructed that negligence is the failure to observe that degree of care which people of ordinary prudence and sagacity would use under the same or similar circumstances; and that defendant‘s duty was measured by what a reasonably prudent person would anticipate as resulting from a particular condition . . . . Thus when the jury found these facts: [the employee] was bitten by an insect; the insect bite caused illness or disease and led to [the employee‘s] present physical condition; the stagnant pool attracted bugs and vermin and was responsible for the insect bite and the injuries to [the employee]; and [the railroad] knew that the accumulation of the pool of water would attract bugs and vermin to the area—it is clear that the jury concluded that [the railroad] should have realized the increased likelihood of an insect‘s biting petitioner while he was working in the vicinity of the pool.
Gallick, 372 U.S. at 117-19 (emphasis added).
Gallick demonstrates that an employer‘s FELA duty is to use due care in mitigating risks to an employee that are increased by the employee‘s presence at the workplace. Although the FELA is a remedial statute that protects employees, it “does not make the employer the insurer of the safety of his employees while they are on duty.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994) (quoting Ellis v. Union Pac. R.R. Co., 329 U.S. 649, 653 (1947)). The FELA standard of сare, therefore, does not extend to mitigating risks that arise from life in general, rather than from an employee‘s duties or presence at the workplace in particular. See Bailey, 319 U.S. at 353.
This distinction between general, baseline risks, on one hand, and risks that are heightened in the workplace, on the other—helps explain the results in many FELA cases. See, e.g., Gallose v. Long Island R.R. Co., 878 F.2d 80, 86 (2d Cir. 1989) (holding that jury must decide whether coworker routinely brought dog to work in course of employment, and whether railroad‘s duty included duty to warn of heightened risk of dog bite); Ybarra v. Burlington N., Inc., 689 F.2d 147, 151 (8th Cir. 1982) (holding that jury could conclude that nonenforcement of railroad‘s heavy lifting safety procedures was breach of FELA duty which caused employee‘s repetitive lifting injury); Lehman v. Nat‘l R.R. Passenger Corp., 661 A.2d 17 (Pa. Super. 1995) (affirming summary judgment in favor of railroad when piece of regulation-sized, properly stored luggage fell on train conductor‘s foot), appeal denied, 672 a.2d 308 (Pa. 1996). In the terms of those cases, the FELA may or may not impose a standard of care with respect to dog bites, repetitive stress injuries, or falling objects, all dеpending on
Applying the foregoing analysis in the instant case, we first note that SEPTA does not dispute that Devlin was acting in his role as an employee at the time he suffered cardiac arrest and that, therefore, the FELA applies.8 There is, therefore, no dispute that SEPTA owed Devlin a duty to provide a reasonably safe workplace, but the parties disagree as to the standard of care that SEPTA must exercise with respect to AEDs. It is apparent, however, that before the trial court, the parties did not attempt to define that standard of care in the terms we have set
forth above—i.e., by addressing whether the risk (of cardiac arrest) that caused Devlin‘s injury is one that is foreseeably heightened by Devlin‘s employment. There is nothing in the record (including Appellant‘s proffered expert testimony) that addresses any such heightened risk of harm. The trial court concluded, however, that the AIPP is not a “safety rule”9 and thаt SEPTA‘s FELA duty did not include “anticipating [Appellant‘s] heart attack[,] nor did it mandate providing assistance to him in the form of the use of an AED.” (Br. for Appellant, trial court op. at 11.) Although it may be true that there is no generally applicable FELA duty to implement specific AED policies—or to provide any AEDs or training at all—we can imagine circumstances under which the foreseeable risk of cardiac events involved in certain employment could impose a heightened standard of cаre with respect to AEDs in the workplace.10 Accordingly, the trial court erred in attempting to define the appropriate FELA standard of care with respect to AEDs without a record addressing the reasonable foreseeability of the risk of cardiac arrest
associated with Devlin‘s employment. In the instant case, however, because the record is devoid of any
C. Motion In Limine
Appellant also argues on appeal12 that the trial court erred in granting SEPTA‘s motion in limine to preclude Darius’ expert testimony. First, Appellant claims that the evidentiary rule on which the trial court based its decision—
effectively. Appellant emphasizes that Darius’ testimony is offered not to prove a violation of OSHA regulations but instead to show that SEPTA could have implemented an AED policy more effectively, as demonstrated by OSHA‘s guidelines regarding AEDs. In response, SEPTA argues that Darius’ testimony is more prejudicial than probative, because the OSHA regulations themselves do not mention AEDs and the Guide‘s AED prоvisions are nonbinding.
Considering Darius’ testimony in light of our analysis of the summary judgment issue, we note that his testimony, which Appellant sought to introduce to support Appellant‘s theory of SEPTA‘s breach of a duty, does not address whether any SEPTA employees are exposed to an increased risk of cardiac events that would suggest a heightened standard of care with respect to AEDs under the FELA. The trial court, therefore, did not err in granting SEPTA‘s motion in limine, as Darius’ testimony did nothing to establish that SEPTA breached any duty owed to Aрpellant under the analysis discussed above.
IV. CONCLUSION
For the foregoing reasons, we will affirm the order of the trial court granting summary judgment in favor of SEPTA.
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 27th day of June, 2019, the order of the Court of Common Pleas of Philadelphia County (trial court), dated
P. KEVIN BROBSON, Judge