Present: All the Justices
NORFOLK SOUTHERN RAILWAY COMPANY
v. Record No. 982682 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 5, 1999
KENNETH LEE THOMAS, SR.
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
In this appeal of a judgment in an action brought under the
Federal Employers' Liability Act (the FELA), 45 U.S.C. §§ 51-60,
we consider whether the trial court erred in refusing to
instruct the jury on an issue of contributory negligence.
In August 1995, Kenneth Lee Thomas, Sr., allegedly injured
his back while working as a student mechanic for Norfolk &
Western Railway Company (the railway). * When the incident
occurred, Thomas was employed on the second shift in the
railway's car repair shop in Roanoke (the shop) where hopper
cars used for carrying coal were dismantled, reconditioned, and
reassembled. As part of this procedure, employees in the shop
removed each car's wheel assemblies, which weighed about three
to four tons each, reconditioned them, and lowered them by crane
*
Following the trial of this action, Norfolk & Western
Railway Company merged with Norfolk Southern Railway Company.
The trial court substituted Norfolk Southern Railway Company in
the place of Norfolk & Western Railway Company in its final
order. The term "the railway" will be used in this opinion to
refer to either entity.
back into place. Thomas's duties included guiding and aligning
the reconditioned wheel assemblies during this process.
One evening, after working for about an hour and a half on
a floor area that was slippery from accumulated work debris,
Thomas slipped while guiding a reconditioned wheel assembly into
place. Thomas immediately felt a "stabbing" pain in his lower
back and was taken by ambulance to the emergency room of a local
hospital. After receiving a variety of medical treatments over
the course of two years, Thomas underwent spinal fusion surgery.
Thomas filed this action against the railway under the
FELA, alleging, among other things, that the railway failed to
provide a safe workplace. In response, the railway denied that
Thomas was injured and alternatively alleged that any injuries
he may have sustained were caused by his own negligence.
At trial, the evidence established that the "burning"
process, used by workers on the first shift when dismantling the
wheel assemblies, caused a spray of molten metal particles,
described as "slag," to fall on the shop floor. The slag, which
solidified after reaching the floor, left a slippery dust
residue on the floor. Thomas testified that "if you had a
handful of salt and spread it on the [shop floor,] . . .
[t]hat's basically [how] it felt."
There was evidence that bolts, rust particles, and other
debris also fell onto the shop floor during both the first and
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second shifts. Thomas testified that due to these floor
conditions, slipping was "a normal part of the day," and that he
would slip frequently when guiding the reconditioned wheel
assemblies as they were lowered by crane.
At the time Thomas was injured, the railway had in effect a
safety regulation, which provided that "[e]mployees must keep
premises subject to their control neat and clean." The evidence
showed that the railway had placed brooms and shovels at
Thomas's work station. When asked whether employees were
supposed to clean their work area at any particular time during
their shift, William J. East, the senior general foreman in the
shop, testified that the employees were given "discretion" in
determining when their work areas needed to be cleaned. Thomas
and his co-worker, David Atkins, testified that they understood
that the railway's policy was that they were expected to clean
their work area only at the end of their shift.
Various witnesses testified that workers on the second
shift frequently complained to the railway that employees on the
first shift had failed to clean the shop floor. Atkins
testified that, in January 1995, he filed a written safety
complaint informing the railway of this problem. In response to
Atkins's complaint, the senior general foreman instructed the
first shift supervisor to "insure work area is clean at end of
shift."
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Thomas testified that on the day he was injured, the first
shift had not cleaned the shop floor in the area of his work
station, and that he did not clean the floor at any time prior
to his fall. Thomas explained that he had slipped on other
occasions during his shift before the time he slipped and
injured his back, including instances while working on the same
wheel assembly.
At the close of the evidence, the trial court granted
Thomas's motion to strike the railway's evidence of contributory
negligence and refused the railway's proffered jury instructions
on that issue. The court ruled that the evidence was
insufficient to submit this issue to the jury, because the
railway's senior general foreman had testified that an employee
was given discretion in exercising his duty to keep his work
station clean during his shift. In support of its ruling, the
court also noted that the railway had failed to present evidence
"as to what an abuse of that discretion or a negligent failure
to act on that discretion would be."
The jury returned a verdict in favor of Thomas and awarded
him $1.5 million in damages. The trial court entered judgment
on the jury's verdict.
On appeal, the railway argues that the evidence at trial
presented an issue of contributory negligence for the jury's
determination. The railway contends that this issue was
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supported by the evidence that each employee had a duty to keep
his work area clean, and that Thomas failed to use the brooms
and shovels provided by the railway to clean his floor area
despite his knowledge that the floor was slippery.
In response, Thomas asserts that the railway failed to
produce any evidence from which a jury could have concluded that
Thomas was guilty of contributory negligence. He contends that
there was no evidence establishing that he violated any duty, or
that he acted unreasonably under the circumstances. Thomas
contends that the railway's evidence presented only an issue of
assumption of the risk, a defense that is not permitted under
the FELA. We disagree with Thomas's arguments.
In deciding this appeal, we apply federal decisional law,
because the issue whether negligence, or contributory
negligence, has been established under the FELA is a federal
question. See Norfolk S. Ry. v. Trimiew, 253 Va. 22, 24, 480
S.E.2d 104, 106, cert. denied, 520 U.S. 1265 (1997); Norfolk &
W. Ry. v. Hodges, 248 Va. 254, 260, 448 S.E.2d 592, 595 (1994).
Since the defense of assumption of the risk has been abolished
under the FELA, a federal question also is presented in
determining whether evidence relates solely to assumption of the
risk and, thus, cannot support a jury instruction on
contributory negligence. See Hose v. Chicago Northwestern
Transp., 70 F.3d 968, 978 (8th Cir. 1995); Fashaeur v. New
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Jersey Transit Rail Operations, 57 F.3d 1269, 1279-80 (3rd Cir.
1995); Birchem v. Burlington N. R.R., 812 F.2d 1047, 1049 (8th
Cir. 1987).
A defendant has the burden of proving contributory
negligence and is entitled to a jury instruction on this issue
if there is any evidence to support that theory. Hose, 70 F.3d
at 978; Gish v. CSX Transp., Inc., 890 F.2d 989, 992 (7th Cir.
1989); Taylor v. Burlington N. R.R., 787 F.2d 1309, 1316 (9th
Cir. 1986). The fact that an employee may have been guilty of
contributory negligence does not bar him from recovering damages
under the FELA for the employer's negligence, but the damages
shall be reduced by the jury in proportion to the amount of
negligence attributable to the plaintiff employee. 45
U.S.C. § 53; Hodges, 248 Va. at 262, 448 S.E.2d at 596; Norfolk
S. Ry. v. Rayburn, 213 Va. 812, 816, 195 S.E.2d 860, 864 (1973).
Since issues of the plaintiff's conduct and of damages usually
are interwoven in FELA actions, the issue of damages is rarely
submitted to a jury without also allowing the jury to consider
the question of contributory negligence. See Hodges, 248 Va. at
262, 448 S.E.2d at 596; Norfolk S. R.R. v. Ferebee, 238 U.S.
269, 273 (1915).
Although there may be overlapping evidence pertinent to
both the defense of contributory negligence in a FELA action and
the abolished defense of assumption of the risk, there are
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important distinctions between the two theories that have been
addressed by the federal courts. Assumption of the risk
consists of a plaintiff's implicit consent to known risks and
dangers necessary to the performance of his duties when he
undertakes a routine assignment in compliance with the
directives of his employer. Fashaeur, 57 F.3d at 1278; Taylor,
787 F.2d at 1316; Rivera v. Farrell Lines, Inc., 474 F.2d 255,
257 (2d Cir.), cert. denied, 414 U.S. 822 (1973). In contrast,
contributory negligence is a careless act or omission by the
plaintiff that tends to add new dangers to conditions that the
employer negligently created or allowed to exist. Taylor, 57
F.3d at 1316; see also Gish, 890 F.2d at 991-92; Birchem, 812
F.2d at 1049; Rivera, 474 F.2d at 257; Hodges, 248 Va. at 262,
448 S.E.2d at 596.
Evidence of contributory negligence cannot be excluded from
a jury's consideration merely because that evidence may also be
relevant to assumption of the risk. Hose, 70 F.3d at 978;
Beanland v. Chicago, Rock Island & Pac. R.R., 480 F.2d 109, 116
n.5 (8th Cir. 1973); Murray v. New York, New Haven & Hartford
R.R., 255 F.2d 42, 44 (2d Cir. 1958); see Sauer v. Burlington
Northern R.R., 106 F.3d 1490, 1496 (10th Cir. 1996). However,
when evidence relates solely to assumption of the risk, such
evidence cannot support a jury instruction on contributory
negligence. Hose, 70 F.3d at 978; see Birchem, 812 F.2d at
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1049; Taylor, 787 F.2d at 1316. Thus, a plaintiff's damage
award under the FELA cannot be reduced on the basis that he or
she implicitly consented to the risks inherent in the employment
by performing a task in the manner directed by the employer.
Fashaeur, 57 F.3d at 1279; see Birchem, 812 F.2d at 1049;
Taylor, 787 F.2d at 1316.
When there are reasonable alternatives to performing a task
in an unsafe way, a plaintiff must act with due care and will be
held responsible for acting unreasonably. Combs v. Norfolk & W.
Ry., 256 Va. 490, 498, 507 S.E.2d 355, 360 (1998); Fashaeur, 57
F.3d at 1280. Thus, an issue of contributory negligence is
presented based on evidence that an employee failed to follow a
specific safety instruction reasonably imposed to protect the
employee from the injury that occurred. Fashauer, 57 F.3d at
1280; see Kendrick v. Illinois Cent. Gulf R.R., 669 F.2d 341,
343-44 (5th Cir. 1982); Chesapeake & O. Ry. v. Richmond, 217 Va.
258, 263-64, 227 S.E.2d 707, 711-12 (1976).
In the present case, the railway presented evidence that
Thomas failed to follow the specific safety instruction that
"employees must keep premises subject to their control neat and
clean." Thomas knew that the floor in his work area was
slippery and actually had slipped earlier during his shift while
working on the same wheel assembly. Nevertheless, he did not
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clean his work area with a broom that the employer had placed at
his work station for his use.
The fact that employees were given "discretion" in
determining when their work areas needed cleaning did not excuse
Thomas from the duty to use reasonable methods provided by the
employer as an alternative to performing a task in an unsafe
manner. See Combs, 256 Va. at 498, 507 S.E.2d at 359; Fashaeur,
57 F.3d at 1280. Thomas was still required to exercise
reasonable care for his own safety, and the question whether any
portion of his injury was attributable to his own acts or
omissions should have been decided by the jury. See Sauer, 106
F.3d at 1496; Martinez v. Union Pac. R.R., 82 F.3d 223, 229 (8th
Cir. 1996); Hodges, 248 Va. at 262, 448 S.E.2d at 596.
Thomas's acts or omissions at the time he was injured were
evidence of contributory negligence under the FELA, and not
solely evidence of assumption of the risk, because they would
support a conclusion that he caused dangers that were additional
to any hazardous conditions that the railway may have caused or
permitted to exist. See Gish, 890 F.2d at 991-92; Birchem, 812
F.2d at 1049; Taylor, 787 F.2d at 1316; Hodges, 248 Va. at 262,
448 S.E.2d at 596. Therefore, we hold that the trial court
erred in striking the railway's evidence of contributory
negligence and in refusing to submit the issue to the jury for
its determination.
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For these reasons, we will reverse the trial court's
judgment and remand the case for a new trial on all issues
consistent with the principles expressed in this opinion.
Reversed and remanded.
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