Williаm Zeagler brought this action pursuant to the Federal Employers’ Liability Act (FELA)
“Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing the grant of a motion for summary judgment, we apply a de novo standard of review.”
Viewing the evidence and all reasonable conclusions and inferences draw from it in the light most favorable to Zeagler as the nonmoving party,
Zeagler sued Norfolk Southern pursuant to FELA, claiming negligence and alleging, inter alia, that the company failed to provide him with a reasonably safe place to work in that it breached its duty by not training him in safety measures in the event of a grade-crossing collision. He claims that this failure to train caused his injuries. Based on expert testimony, he also argued that his risk of injury would have been reduced if he had been trained to get below window level in a seated and/or braced position, and had been instructed not to attempt to escape an impending collision by jumping from the train. Norfolk Southern moved for summary judgment, alleging that it had no duty under federal law to provide such training, and that there was no causal connection between the lack of training and Zeagler’s injuries. The trial court agreed, and granted the summary judgment motion from which this appeal springs.
FELA provides a federal tort remedy for railroad employees injured on the job,
1. Zeagler argues that the trial court erred in finding that Norfolk Southern had no duty to train him in safety measures applicable to grade-crossing collisions. Specifically, he contends that the trial court improperly conflated the legal standards for duty and causation in finding that he was “unable to demonstrate that this training would have actually helped”
It is difficult for a railroad to argue that a particular mishap is unforeseeable when exactly the same event, e.g., bodily injuries to train crews involved in a grade-crossing collision with a motor vehicle, has occurred innumerable times before. And a railroad is required to take precautions commensurate with the danger inherent in a situation and proportionate to consequences which may reasonably be anticipated from neglect.
Viewed appropriately, the record clearly shows that Norfolk Southern could have foreseen grade-crossing collisions and the attendant hazards resulting from a failure to train its employees. William E. Honeycutt, a retired assistant vice-president of operating rules for Norfolk Southern testifying for the railroad, deрosed that the company experienced about 2,500 grade-crossing collisions between 2003 and 2007, or about one per day, and that Norfolk Southern knew of both the frequency of collisions and that employees got injured in the collisions. He also deposed that Norfolk Southern knew that crews sometimes attempted to flee the locomotive cab even though it is usually safer to remain inside. Honeycutt deposed that Norfolk Southern provides “no specific rules or instructions pertaining to crossing accidents.”
In the case at bar, it is beyond argument that Norfolk Southern had a duty to protect Zeagler from crossing collisions, if such be possible, or at least take steps to mitigate, if possible, the physical injuries which may accompany such mishaps. It is a railroad; he was an employee. He was in service and on the job. Crossing collisions occur frequently, perhaps as many as one per day on the entire Norfolk Southern system. And the injuries to railroad employees can range from the trivial to the fatal.
One of Zeagler’s experts, John Ambrose, a retired Norfolk Southern trainmaster who had investigated about 75 grade-crossing collisions and had been in approximately 15 such collisions, testified that because of the information the railroad collects in injury reports after
[i]n virtually every crossing collision, it is much safer to stay in the interior of the locomotive rather than attempt to leap from it. Despite this fact, Norfolk Southern does not tell its employees not to leap from locomotives when a crossing collision is imminent. As a result of this failure to give this specific instruction, and the general failure to train its employees on how to protect themselves in crossing collisions, [Zeagler] was attempting to flee the interior of the locomotive in a panicked state when he sustained his injuries____Norfolk Southern could have devised a procedure for [Zeagler] to follow, such as a standard brace position for him to assume, that would have prevented him from being in a position where he would strike his lower back on the brakeman’s grip, and fall over and bounce up and down on his tailbone.
Another expert, Dr. Andrew J. Hurayt, opined that as Zeagler’s treating psychiatrist, he believed that Norfolk Southern’s lack of training contributed to Zeagler’s post-traumatic stress disorder following the collision. Finally, expert witness Dr. Marc B. Wilson, an ergonomist, opined that training in emergency procedures was crucial to allow employees to perform their jobs safely and to reduce panic reactions and therefore the likelihood of physical injury. Had Zeagler been properly trained, Wilson testified, he likely would not have attempted to flee the cab and instead would have assumed a safe, braсed position, reducing his risk of falling on his back. Zeagler’s affidavit, however, says that he
was not trained by anyone, in any way, on how to protect myself in the event of a crossing collision. Norfolk Southern has never told me not to attempt to jump off a locomotive in the event of an impending crossing collision. Norfolk Southern never trained me to assume a position оf safety or how to avoid injury in any fashion.
Norfolk Southern argues that it had no duty to train its employees on where to go and what to do in the cab of a locomotive preceding
[t]he argument that there may be a small percentage of incidents in which a standardized training program would not be appropriate can be likened to the argument that there are a small percentage of cases in which seatbelts do not promote safety in automobile collisions. ... In fact, emergency procedures cannot be designed to cover every single circumstance but are, insteаd, designed to promote safety in most circumstances.13
Further, the cases Norfolk Southern cites in support of its proposition that Zeagler’s claims fail as a matter of law are factually distinguishable and generally involve a failure of proof on the part of the plaintiff that is not present in the case sub judice.
2. But did the railroad breach its duty to Zeagler, i.e., was it negligent? The plaintiff asserts that the employer was negligent in not requiring, or at least providing, a training course which might teach employees how to move and act once it becomes obvious that the heavy train cannot be brought to a stop in time and hence a collision is inevitable.
Grade-crossing collisions occur in a variety of circumstances. But perhaps some general advice might reduce injuries in a wide variety of such collisions, e.g., “do not leap from a speeding locomotive unless one is a Hollywood stunt man.” Whether a collision safety course is possible and helpful is a question for the jury. Just as duty is always
[t]he common law definition of causation is not applicable here____The United States Supreme Court has called FELA an avowed departure from the rules of the common law ... [and] á response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequatеly for their own safety.15
If the jury finds that the railroad did breach its duty by not having the safety course, then it must consider causation. The trial court erred when it took that issue from the jury by finding that Zeagler was “unable to demonstrate that this training would have actually helped’ protect him from injury.
Under [FELA,] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death.17
Thus, if the jury finds that the railroad’s breach — and there was no breach if the course was not feasible — played “any part at all” in Zeagler’s mishap, then the plaintiff will have proved that the breach was a cause-in-fact оf his injuries.
3. The evidence the jury may consider includes the testimony of Norfolk Southern’s own expert, Honeycutt, that in most instances it is safest not to jump from the train but rather to move to the floor and brace oneself, coupled with the testimony of Zeagler’s experts that he would not have sustained the injuries he did if he had been properly trained to take a seated and/оr braced position,
The trial court’s order mentions as its rationale for finding no causation Zeagler’s own testimony that had he been seated in the conductor’s chair during the accident, he would have been “cut to shreds” by flying debris. The order notes that “thе Court finds it ironic that the ‘safe position’ suggested by [Zeagler’s expert] would have led to the Plaintiff’s death in this particular accident.” However, in so finding, the trial court ignored testimony from Zeagler’s experts that had Zeagler been trained to assume a braced position in that same chair, bending below the level of the window, he would have been “all right.” Also, the trial court aрparently did not consider expert testimony that if Zeagler had been trained to squat down, his injuries may not have occurred as they did.
“In numerous cases this court has reiterated the principle that questions of negligence and causation, except in plain, palpable, and indisputable cases, are solely for jury determination.”21 The testimony and evidence rеnder this case not within the “indisputable” category, clearly presenting fact questions for the jury.
4. Norfolk Southern further contends that Zeagler’s failure to train claim is preempted, precluded, or superseded by Federal Railroad Administration training regulations, the Federal Railroad Safety Act. Appellate courts generally do not consider issues not ruled on below, and here, the trial court did not grant a general summary judgment basеd on all grounds raised by Norfolk Southern.
Judgment reversed.
Notes
45 USCA § 51 et seq.
The transcript of the hearing is not in the record before us.
(Footnotes omitted.) Norris v. Central of Ga. R. Co.,
Id. at 794.
CSX Transp. v. Smith,
Id.; 45 USCA § 51, supra.
(Citation and punctuation omitted.) Bagley u. CSX Transp.,
(Emphasis supplied.)
CSX Transp. v. McBride,_U. S._(III) (B) (131 SC 2630, 2643, 180 LE2d 637) (2011).
Gallick v. Baltimore & Ohio R. Co.,
Ga. Southern & Florida R. Co. v. Peters,
Id. at 144 (1).
(Emphasis supplied.)
See Dent v. Consolidated Rail Corp.,
(Punctuation omitted.) Norfolk Southern R. Co. v. Schumpert,
(Emphasis supplied.)
(Citations and punctuation omitted; emphasis supplied.) Currin v. Seaboard System R.,
Norris, supra.
(Citations omitted.) Bailey v. Central Vermont R.,
Norfolk Southern contends, correctly, that three of its own accident reports may not be considered, as they are inadmissible hearsay evidence according to this court’s findings in Wynn v. City of Warner Robins,
Atlantic Coast Line R. Co. v. Daugherty,
See Currin, supra (“[u]nder the FELA the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought”) (citation and punctuation omitted).
Currin, supra at 753.
It is the personal opinion of the author, although not the opinion of this court, that proximate cause should always be an issue for the jury, even in so-called plain and palpable cases. Under presеnt law, an appellate court may intervene in a lawsuit on policy grounds, like a deus ex machina, at two points in the determination of liability, duty or proximate cause. Litigation would be more predictable if policy considerations could apply on only one issue, duty. See generally C. Mikell, 27 Georgia State Bar J. 2, 60; see also L. Green, Rationale of Proximate Cause (Vernon Law Book Co. 1927) (“All in all this confused method of dealing with the problem, though widely accepted, is a wretched one, inexcusably perpetrated by intelligent judges, and utterly devoid of scientific foundation.”); Palsgraf v. Long Island R. Co.,
See, e.g., Carter v. Glenn,
McPherson v. McPherson,
See City of Gainesville v. Dodd,