Present: Hassell, C.J., Keenan, Kinser, Lemons, Goodwyn,
and Millette, JJ., and Russell, S.J.
NORFOLK AND PORTSMOUTH BELT
LINE RAILROAD COMPANY OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 072041 October 31, 2008
JOHN R. WILSON
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Mark S. Davis, Judge
This is an appeal from a judgment for the plaintiff for
personal injuries covered by the Federal Employers’ Liability
Act (FELA), 45 U.S.C. §§ 51 through -60, as amended. The
defendant assigns error to four of the trial court's rulings
on the admissibility of evidence.
Facts and Proceedings
Under familiar principles of appellate review, we will
state the facts in the light most favorable to the plaintiff,
the prevailing party at trial. Little v. Cooke, 274 Va. 697,
703, 652 S.E.2d 129, 133 (2007). On August 11, 2003, John R.
Wilson was employed as a conductor for the Norfolk and
Portsmouth Belt Line Railroad Company (Belt Line), his
employer for nearly 30 years. At the time of his injury,
Wilson was riding on the side of a railroad boxcar that was
moving along a switching track. The track ran parallel to a
chain link fence, eight feet tall, supported by two-inch steel
posts anchored in concrete. Wilson’s purpose was to couple
the boxcar he was riding to another car that was stationary on
the same track. For most of its length, the fence was located
approximately eight feet away from the centerline of the
track, but one of the posts supporting the fence was bent
inward, toward the track, one to two feet, a condition that
had existed for more than two years at the time of Wilson's
injury. As the car Wilson was riding passed the bent post,
his left upper arm, near the shoulder, struck it, resulting in
his injuries.
Wilson brought this FELA action against the Belt Line,
alleging that the Belt Line’s business and his duties were in
furtherance of interstate commerce and that the Belt Line had
been negligent in failing to provide him a safe workplace.
Specifically, he contended that the Belt Line had failed in
its duty properly to inspect and maintain its track and right-
of-way, and to eliminate dangerous “close clearances” along
the track.
At trial, Wilson introduced the testimony of Raymond A.
Duffany, who qualified as an expert witness on the prevailing
practices and safety standards in the railroad industry
nationwide with respect to “close clearances.” Duffany
testified that because railroad workers must often ride on the
sides of rail cars in the course of their work, eight feet
from the centerline of the track to any adjacent fixed object
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was the “absolute minimum” for safe clearance and that any
distance less than eight feet would be a “close clearance” and
“very dangerous, life-threatening.”
Over the Belt Line’s objection, Duffany testified that,
although Virginia has no law governing such clearances, 38
other states have such laws, that none of those laws permit
clearances less than eight feet, and that 29 of those 38 state
laws require clearances greater than eight feet. The Belt
Line moved the court to strike Duffany’s testimony regarding
the laws of other states as having no relevance to the law of
Virginia but likely misleading the jury to think that those
foreign laws governed the safety standard prevailing in
Virginia.
At Wilson’s request, the court granted Instruction No.
41, which told the jury, “You may consider custom and usage in
the railroad industry and close clearance laws in other
jurisdictions as evidence of what may be reasonable in a given
situation, but are free to give this evidence whatever weight
you [may choose] to give it. You must decide what was
reasonable under the circumstances of this case based upon all
of the evidence as you find it.” (Emphasis added.)
The jury returned a verdict for Wilson in the amount of
$330,000, upon which the court entered final judgment. We
awarded the Belt Line an appeal. The Belt Line asserts four
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assignments of error: (1) Admission of evidence concerning
the “close clearance” laws of states other than Virginia, (2)
admission of Duffany’s expert testimony despite the
plaintiff’s failure to comply fully with the expert disclosure
requirements of Rule 4:1(b)(4)(A), (3) admission of Duffany’s
testimony without requiring a foundation for opinions
regarding close clearance practices in Virginia, and (4)
admission of evidence of conditions that did not cause the
plaintiff’s injury. This fourth assignment of error relates
to the court’s admission, over the Belt Line’s objection, of
evidence that some additional sections of the fence and its
supporting posts, beyond the point of Wilson’s impact, were
less than eight feet from the centerline of the track even
though those sections were upright and undamaged.
Analysis
“Generally, we review a trial court’s decision to admit
or exclude evidence using an abuse of discretion standard and,
on appeal, will not disturb a trial court’s decision to admit
evidence absent a finding of abuse of that discretion.” John
Crane, Inc. v. Jones, 274 Va. 581, 590, 650 S.E.2d 851, 855
(2007). “While a trial court has no discretion to admit
clearly inadmissible evidence, a great deal must necessarily
be left to the discretion of the [trial court], in determining
whether evidence is relevant to the issue or not.” Id.
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(citation and internal quotation marks omitted). While all
irrelevant evidence is inadmissible, e.g., Pruett v.
Commonwealth, 232 Va. 266, 284, 351 S.E.2d 1, 12 (1986),
evidence that is factually relevant also must be excluded from
the jury's consideration if the probative value of that
evidence is substantially outweighed by the danger of unfair
prejudice. Gamache v. Allen, 268 Va. 222, 227, 601 S.E.2d
598, 601 (2004); Walker v. Commonwealth, 258 Va. 54, 68, 515
S.E.2d 565, 573 (1999); Coe v. Commonwealth, 231 Va. 83, 87,
340 S.E.2d 820, 823 (1986).
We turn to the first assignment of error, relating to the
admission of evidence of the statutes of other states. While
it is undisputed that Virginia has no statute regulating close
clearances along railroad tracks, Wilson contends that under
Virginia law as well as under the FELA, a railroad company has
a duty to exercise reasonable care for the safety of its
employees, which includes the duty to provide them a
reasonably safe place in which to work. Wilson argues that
the standard by which that duty is measured with respect to
close clearances is a nationwide standard fixed by the
prevailing practice in the railroad industry. The statutes of
38 states on the subject of close clearances, Wilson contends,
are illustrative of the prevailing standard and relevant to
prove its existence.
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Inapplicable statutes are, in most circumstances,
irrelevant to the proof of the standard of care in a
negligence case. In Perlin v. Chappell, 198 Va. 861, 96
S.E.2d 805 (1957), the owner of a stockyard in the City of
Norfolk failed to prevent the escape of a frightened 1100-
pound heifer from a fenced enclosure. The animal jumped out
of the enclosure and ran into the plaintiff, injuring him.
Id. at 863, 96 S.E.2d at 807-08. The stockyard owner argued
that he was absolved from negligence because the evidence
showed that all his fences were “lawful,” in that they were at
least five feet high, bringing them into compliance with the
then applicable provisions of former Code §§ 8-866 to 8-905.
This Court held that the statutes were irrelevant to the
stockyard owner’s duty to exercise ordinary care because they
were inapplicable. The Court wrote: “A complete answer to
this line of argument is that [those] statutory provisions,
dealing with lawful fences and the trespass of stock[,] are
applicable within counties and not applicable within cities
and towns.” 198 Va. at 864, 96 S.E.2d at 808 (citations
omitted).
A statute that establishes a standard of conduct may be
considered as evidence of negligence on behalf of one for
whose benefit it was enacted, if its breach was a proximate
cause of the injury of which he complains. See McGuire v.
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Hodges, 273 Va. 199, 206, 639 S.E.2d 284, 288 (2007). A
statute inapplicable to the case, however, is inadmissible.
Any relevance it might have would be substantially outweighed
by the prejudicial effect of admitting it. Ellis v. Caprice,
233 A.2d 654, 662 (N.J. App. Div. 1967). See also Wise v.
Tidal Constr. Co., 608 S.E.2d 11, 15 (Ga. Ct. App. 2004)
(finding no error in trial court’s exclusion of National
Standard Building Code, inapplicable to the property in
question, as illustrative of local standard of care).
In Trimarco v. Klein, 436 N.E.2d 502 (N.Y. 1982), the
Court of Appeals of New York considered an analogous case.
The plaintiff, injured by the breaking glass of a bathtub
enclosure, contended that the defendant landlord had violated
a duty to exercise ordinary care by failing to install
tempered safety glass or plastic instead of the ordinary glass
that caused his injury. Id. at 503. The plaintiff presented
evidence that such safer materials had been available for over
20 years and that their use had, long before his injury,
become the prevailing custom and usage in the local building
industry. The plaintiff also offered, and the trial court
admitted in evidence, two New York statutes mandating the use
of shatterproof glazing materials for bathtub enclosures. The
statutes applied only prospectively and did not affect the
landlord’s property, which was built before the statutes’
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effective date. Id. at 503-04. The statutes, however, were
admitted as evidence of the industry standard. The trial
court instructed the jury that evidence relating to custom and
usage was not alone conclusive, but that the issue before them
was “the reasonableness of the defendant’s conduct under all
of the circumstances.” Id. at 506. The jury returned a
verdict for the plaintiff. The Court of Appeals reversed and
remanded the case for a new trial, holding that even though
the plaintiff had presented evidence of custom and usage
sufficient to take the case to the jury, and even though the
jury had been correctly instructed, the admission of the
inapplicable statutes into the case was reversible error. The
statutes protected those whose shower glazing was installed
after the effective dates of the statutes, a class to which
the plaintiff did not belong. The court commented: “[I]t
cannot be said that the statutes, once injected into the
adversarial conflict, did not prejudice the defendants.” Id.
at 506-07.
Statutory law, as the considered judgment of the elected
representatives of the people, properly commands the respect
of jurors. Evidence of statutory law that does not apply to
the case on trial, but seems to support the position of one
party, is likely to be both misleading to the jury and
prejudicial to the opposing party. We agree with the courts
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that have considered the question and hold that inapplicable
statutes are inadmissible as proof of the standard of
reasonable conduct in a negligence case. For that reason, we
will reverse the judgment and remand the case to the circuit
court.
The Belt Line’s second assignment of error, relating to
inadequate pretrial disclosure of Duffany’s expert testimony,
is rendered moot by the reversal of the case. If Duffany
should testify in future proceedings, the substance of his
evidence has now been fully disclosed.
We find no merit in the Belt Line’s third assignment of
error, relating to Duffany’s foundation for expert opinion as
to the prevailing industry standard for close clearances in
Virginia. Duffany expressed the opinion that the same
standard prevailed in all states and he explained that
standard in detail. That was a sufficient foundation for his
opinion. See Christian v. Surgical Specialists of Richmond,
268 Va. 60, 65-66, 596 S.E.2d 522, 525 (2004) (opinion
permitted where national and Virginia standards coincide);
Morgen Indus. v. Vaughan, 252 Va. 60, 64-66, 471 S.E.2d 489,
491-92 (1996) (national standards relied upon by expert whose
testimony established unreasonable dangerousness of a
product).
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The Belt Line’s fourth assignment of error relates to the
circuit court’s admission of evidence that the fence was less
than eight feet from the centerline of the track at various
points past the point of Wilson’s impact. We find no error in
the admission of that evidence. The FELA imposes
responsibility on a railroad for dangerous conditions existing
in areas where its employees are required to work, provided
the dangerous conditions are known to the railroad or could
have been discovered in the exercise of reasonable diligence.
See Norfolk & W. Ry. Co. v. Hodges, 248 Va. 254, 260-61, 448
S.E.2d 592, 596 (1994); Syverson v. Consol. Rail Corp., 19
F.3d 824, 826 (2d Cir. 1994). See also Urie v. Thompson, 337
U.S. 163 (1949) (negligence, within the meaning of the Federal
Employers' Liability Act, attached if respondent "knew, or by
the exercise of due care should have known," of the dangerous
condition).
The plaintiff’s evidence showed that a derailment had
occurred 11 months before Wilson’s injury, causing damage to
the fence and requiring replacement of the track for a
considerable distance from and beyond the point of Wilson’s
injury. The track had been replaced closer to the fence than
it had been before the derailment, and even undamaged fence
posts remained closer than eight feet from the centerline
where the track had been replaced. This evidence was relevant
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because it tended to show the Belt Line's failure to inspect
its right of way and to take reasonable action to correct any
dangerous conditions such an inspection would have revealed.
The evidence was probative on the issue of the Belt Line’s
notice, or constructive notice, of the existence of the
dangerous condition that caused Wilson's injury.
Conclusion
For the reasons stated, we will affirm the judgment of
the circuit court with respect to assignments of error three
and four, reverse the judgment for error with respect to the
first assignment of error, and remand the case for further
proceedings consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
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