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Location: Middleburg (Jacksonville), Florida, United States

Published in Trains magazine, Railfan & Railroad, Passenger Train Journal

Monday, October 02, 2006

Supreme Court to take up FELA case


By Leo King

The U.S. Supreme Court begins its new session today. In about a week, it will hear oral arguments from a railroad vs. an employee.

On October 10, the court will take up a question, in Norfolk Southern Ry. v. Sorrell, whether a lower court in Missouri erred in determining-in conflict with the Supreme Court and multiple courts of appeals “that the causation standard for employee contributory negligence under the Federal Employers Liability Act (FELA) differs from the causation standard for railroad negligence.”

The Supreme Court declined to consider another question, whether, under the comparative negligence scheme of FELA, “state courts may rely upon a jury instruction and verdict form mandated by state law that make it impossible for defendants and courts to determine whether and to what extent a jury found contributory negligence on the part of the plaintiff, and which treat FELA defendants differently from all other litigants.”

Timothy Sorrell was an NS trackman. As such, he was a “general laborer,” and performed various jobs related to track maintenance. On November 1, 1999,according to NS lawyers, he drove a dump truck loaded with asphalt that would be used to repair rail crossings near Kendallville, Ind. He unloaded some of the asphalt at the first assigned crossing, and was on a gravel road headed for the next crossing when, according to Sorrell, another vehicle approached him. The approaching vehicle was another NS truck, driven by NS employee Keith Woodin.

Sorrell testified that he slowed down, and pulled far to the right because he did not believe the nine-foot wide trucks could pass one another. Just as the trucks attempted to pass each other, he testified, his front tire dropped into a four-foot ditch, and the truck tipped over onto its side.

Sorrell claims that, as a result of the accident, he suffered various “problems with his neck and back, right wrist and right shoulder.”

Woodin provided a different account of the accident. He testified that when he saw Sorrell approaching, he pulled his truck off the road, and was “basically stopped.”

Furthermore, he testified, Sorrell pulled his truck off the road when the two trucks were still 400-500 feet apart, and that was when Sorrell’s wheel fell into the roadside ditch.

When he saw that happen, Woodin drove to Sorrell, in order to assist him. At about the time that Woodin’s truck reached Sorrell, Woodin testified, Sorrell’s truck rolled over.

Sorrell brought suit under FELA, alleging that NS failed to provide him “a reasonably safe place to work,” “reasonably safe methods for work,” “reasonably safe conditions for work,” and “reasonably safe equipment, tools and appliances for work.”

He sought damages stemming from various claimed physical injuries, as well as medical expenses, lost wages, and pain and suffering. The case was tried to a jury and NS argued, among other things, that Sorrell was contributorily negligent in the manner in which he drove his own truck.

The jury returned a verdict against NS in the amount of $1.5 million. In accordance with the jury instructions, the verdict form did not reflect whether the jury had determined that Sorrell was contributorily negligent nor, if so, the extent to which the jury may have reduced plaintiff’s damages.

An NS motion for a new trial was denied.

On appeal, the Missouri Court of Appeals declined to rehear the case. NS then moved the Missouri Court of Appeals to rehear the case or to transfer it to the Missouri Supreme Court. Both motions were denied.

NS then filed an Application for Transfer with the Missouri Supreme Court, which was also denied.

Both sides offered considerable references to case law.

Sorrell counters FELA Section 1 provides that a railroad will be “liable in damages to any person suffering injury while he is employed by such carrier… for such injury… resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.

Sorrell’s lawyers noted, consistent with Rogers v. Missouri Pacific Railroad Co., decided in 1957, and relying on that decision, “respondent Norfolk Southern Railway Company repeatedly argued in the courts below that the FELA’s “in whole or in part” language lightened the causation standard for railroad liability. Indeed, Norfolk Southern objected only to a jury instruction regarding contributory negligence, because it understood that instruction to require proof of proximate causation, and it remained silent in the face of an instruction regarding railroad negligence that incorporated the FELA’s ‘in whole or in part’ language. Such failure to object is an absolute waiver under Missouri state law of any challenge to the instruction on railroad negligence. It is only in this Court, and only in its merits brief, not in its Petition for Writ of Certiorari, that Norfolk Southern, for the first time, argues that this statutory language in the negligence instruction – language which it previously thought the jury would interpret as relaxing the causation standard for contributory negligence if it were included in that instruction – does not authorize liability on a showing of less than proximate cause.”

Norfolk Southern’s “support for a proximate causation standard for railroad negligence comes too late, and, in any event, is manifestly contrary to this Court’s prior decisions, the courts of appeals’ uniform interpretation of the FELA, and the policy purposes of the Act.”

The defense’s description of the events leading up to the accident was similar to NS’s version.

On November 1, 1999, Sorrell sustained serious injuries when his nine-foot wide company truck flipped onto its side after another nine-foot wide truck driven by Woodin attempted to pass on a sixteen-foot wide gravel road.

“Only invasive surgery, which involved placing a metal cage in his neck, has provided any measure of relief for the neck and shoulder pain Sorrell has experienced since the accident. He continues to experience debilitating lower back pain during most everyday activities.” As a consequence, NS has concluded that Sorrell is no longer physically able to work as a trackman. Moreover, it will not permit him to apply for any other position within the company, because, with only a tenth-grade education, Sorrell failed the requisite examinations.

Sorrell, therefore, “lost his job and the health insurance upon which he and his wife, who has multiple sclerosis, relied.

Sorrell brought suit against NS in Missouri state court under the FELA, alleging that it negligently failed to provide him with, inter alia, a reasonably safe place to work, and that its negligence resulted in his severe injuries.

Sorrell sought damages to compensate for his medical expenses, lost wages, and the pain and suffering that resulted from this permanent disability.

The Supreme Court’s decision is not expected until 2007.

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