Collins v. National Railroad Passenger Corp.

WOODWARD, J. This case arises from a tragic accident that led to the death of thirty-five year old Robert Collins (“the Decedent”). In the early morning hours of February 17, 2005, just south of Havre do Grace, Maryland, the Decedent was working as an Electric Traction Lineman for appellee/cross-appellant, National Railroad Passenger Corporation (“Amtrak”), as a member of a five-man crew headquartered out of Amtrak’s Perryville Maintenance of Way Base. At approximately 3:56 a.m., the Decedent sustained severe electrical burns on approximately 60 percent of his body when he was on top of a catenary maintenance vehicle and came in contact with the energized pantograph. 1 The Decedent was transferred by a Maryland ³⁰⁰ State Police Medivac crew to the Johns Hopkins Bayview Burn Center, where he passed away on February 21, 2005. Appellant/cross-appellee, Michele Collins (“Collins”), the Decedent’s surviving spouse, filed suit under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq., and the Locomotive Inspection Act (“LIA”), 49 U.S.C. § 20701 et seq., asserting claims of negligence and strict liability, respectively, against Amtrak.

After a five-day trial, the jury returned a verdict in favor of Amtrak. On appeal, Collins presents three questions for our review, which we have rephrased: 1. Did the trial court abuse its discretion in not instructing the jury that assumption of risk is not a defense to a claim arising under the FELA? 2. Did the trial court err in granting partial summary judgment in favor of Amtrak on Collins’ claim arising under the LIA? 3.

Did the trial court abuse its discretion in not admitting statements from a transcript of a conversation between Amtrak employees? We answer “No” to each question and, accordingly, shall affirm the judgment of the circuit court. 2 BACKGROUND The Decedent began working for Amtrak in November 1997 as an Electric Traction Lineman at Amtrak’s Mid-Atlantic Division-South, which covered the Baltimore and Perryville area. Such work entailed maintenance and construction of the overhead catenary system, substations, and supply stations along Amtrak’s Northeast Corridor. Normally, about 12,000 volts of electricity travel through the catenary system, powering the trains along Amtrak’s Northeast Corridor. ³⁰¹ Crews of Amtrak employees, each directed by a “gang-foreman,” maintain the catenary system.

The Decedent was a member of a five-man crew, or “gang,” designated D-126, headquartered at Amtrak’s Perryville Maintenance of Way Base. The gang worked during the hours of 10 p.m. to 6 a.m., Monday through Friday. One means of maintaining the catenary system requires measuring the alignment of the overhead contact wire using a catenaiy maintenance vehicle (“Cat Car”). The Cat Car is a diesel-powered rail car and is used to take alignment readings usually under a de-energized catenary system.

The roof of the Cat Car is equipped with a pantograph, which is raised to the overhead contact wire of the catenary system to assist in taking alignment readings of the wire. When attached to an energized contact wire, however, the pantograph collects power, becoming part of the energized catenary system. 3 After being detached and lowered from the energized contact wire, the pantograph is de-energized. When it is not in use, the pantograph is secured with an automatic hold-down latch. Additionally, in the Decedent’s gang, the pantograph was tied down with a rope as an added means of securing it in the lowered position.

On February 16, 2005, the Decedent’s crew started to work at about 10:00 p.m. In addition to the Decedent, the gang included Thomas Boone, the Gang Foreman; George Breder, the Cat Car Operator; Jack Backert, an Electric Traction Lineman; and Bryan Marshall, an Electric Traction Lineman Trainee. Initially, the crew was assigned to perform routine catenary maintenance work on a section of the catenary system. The Decedent was designated the “A-man” at the start of this shift.

As the A-man, it was the Decedent’s responsibility to coordinate the removal of power in the area where the crew worked. Prior to performing their work, the pantograph was ³⁰² raised, attaching it to the contact wire, which was de-energized at the time. At approximately 2:40 a.m. on February 17, 2005, the crew was asked to leave the area. A Norfolk-Southern freight train broke down near the crew’s work site, necessitating that the track occupied by the Cat Car be cleared, so that the railroad could be opened to service the disabled freight train.

Boone lowered the pantograph and Collins tied it down. The power to the catenary lines was then restored. The crew was diverted to the Aberdeen area, where they stayed for about 45 minutes until they were requested to conduct further alignment readings of the catenary system. The readings were to be taken over the distance of about 1500 feet, or five catenary poles (“cat poles”). 4 Because the work was going to be done under energized catenary wires, Boone conducted a safety briefing before the crew set out to complete the readings.

After the alignment readings were finished, the crew observed a bright flash, followed by an explosion and a thump on the Cat Car roof. Boone testified that he immediately took a head count and did not see the Decedent. He explained that, “[j]ust from hearing the explosion and seeing the sky light up, [he] knew what it was.” Boone ran to the top of the Cat Car where he found the Decedent lying “between the pantograph and the railing of the [Cat Car]” with his body “in flames” and “screaming for help.” Boone proceeded to put out the flames on the Decedent’s body with a fire extinguisher. According to Boone, the Decedent’s clothes “had been burned completely off.” It was later determined that at approximately 3:56 a.m. the Decedent sustained severe electrical burns on approximately 60 percent of his body when he came in contact with the energized pantograph while on top of the Cat Car.

The Decedent had climbed on top of the roof of the Cat Car ³⁰³ without direction from the gang or Boone and without the knowledge of any of his gang members. Amtrak’s Accident Investigation Report stated, and the testimony at trial confirmed, that, other than to tie down the pantograph, there was no reason for the Decedent to have gone on top of the Cat Car at that particular time. Because the members of the gang were in the cabin of the Cat Car at the time that the Decedent went up on the roof, there were no eyewitnesses to the accident. Lowering the pantograph requires communication between the A-man and the Cat Car Operator.

Two methods of lowering the pantograph were used by crews in the Mid-Atlantic Division-South: (1) While at the top of the steps or on the roof, the A-man would yell to the Cat Car operator to lower the pantograph; or (2) the A-man would stomp on the roof of the Cat Car near the pantograph above the Cat Car Operator’s controls. 5 The second method required the A-man to straddle a removable railing located on the Cat Car roof. Evidence of the Decedent’s injuries suggested that he was in this position at the time that he sustained his injuries, because the Decedent suffered severe burn marks in his right wrist and groin area, which was consistent with straddling (and thus contacting) the movable railing and simultaneously contacting the energized pantograph with his right wrist. Burn marks were also found on the removable railing. Following the accident, the Decedent was transported by a Maryland State Police Medivac crew to the Johns Hopkins Bayview Burn Center where he passed away on February 21, 2005, at approximately 2:15 p.m. following the removal of life-support systems.

Collins filed suit under the FELA and LIA, asserting claims of negligence and strict liability, respectively, against Amtrak. ³⁰⁴ FELA and LIA are remedial and humanitarian statutes that impose two separate types of liability to protect the safety of railroad employees. FELA permits railroad workers to recover for injuries caused by the negligence of their employers or fellow employees. LIA, on the other hand, imposes an absolute duty on railroad carriers to ensure that their locomotives are both properly maintained and safe to operate. Because LIA does not create an independent cause of action, such a claim must be brought under FELA.

Matson v. Burlington N. Santa Fe R.R., 240 F.3d 1233, 1235 (10th Cir.2001) (citations omitted) (internal quotations omitted). On June 5, 2006, Amtrak filed a motion for partial summary judgment on Collins’ claim arising under the LIA, asserting that the Cat Car is not a locomotive and thus the LIA is inapplicable to Collins’ claim under that statute. On July 14, 2006, the court granted Amtrak’s partial motion for summary judgment on the LIA claim. A five-day jury trial was conducted from August 14 to 18, 2006, and resulted in a verdict in favor of Amtrak.

This timely appeal followed. We will set forth additional facts and proceedings below as necessary to discuss the questions presented. DISCUSSION I. Assumption of Risk Jury Instruction In 1906, Congress passed the FELA “in part to eliminate barriers common law courts erected to protect railroad companies and other common carriers from liability for their employees’ workplace injuries.” Fashauer v. N.J. Transit Rail Operations, Inc., 57 F.3d 1269, 1274 (3d Cir.1995). The FELA “substituted comparative negligence for the strict rule of contributory negligence.” Id.

(internal quotations omitted). Following “widespread criticism” of the retention of assumption of risk as a complete defense to an employer’s liability, ³⁰⁵ Congress amended the FELA in 1939, “elirninat[ing] the defense in cases where the injury ‘resulted in whole or in part from the negligence of any of the officers, agents, or employees’ of the employer.” Id. (quoting 45 U.S.C. § 54 ). Thereafter, the Supreme Court announced that “every vestige of the doctrine of assumption of risk was obliterated from [the FELA] by the 1939 Amendment,” directing that FELA cases are “to be handled as though no doctrine of assumption of risk had ever existed.” Tiller v. Atl.

Coast Line R.R. Co., 318 U.S. 54, 57, 64 , 63 S.Ct. 444 , 87 L.Ed. 610 (1943). In the instant case, Collins proposed that the jury be instructed that assumption of risk is not a defense in a FELA action. The proposed instruction stated: 45 U.S.C. § 54 of The Federal Employer’s Liability Act provides in pertinent part In any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to ... any of its employees, such employees shall not be held to have assumed the risks of his employment where such injury ... resulted in whole or in part from the negligence of any of the officers, agents or employees of such carrier.... Assumption of the risk is not a proper defense in a FELA action and as such it may not be considered in any way in reaching your decision.

(Alterations in original). Amtrak’s counsel excepted to the proposed instruction, and the following colloquy took place: [COLLINS’ COUNSEL]: ... Here, comparative negligence is certainly an issue. We believe that because of the potential overlap with assumption of risk and contributory comparative negligence, that it’s imperative that the jury be given sort of the upper parameters of what actions are appropriate to be considered, and clearly there is a difference.

I understand legally it is an issue that is complicated, but nonetheless, it’s the law, and I think that they should be instructed and we ought to be ³⁰⁶ able to argue that whatever actions on the record, any evidence— THE COURT: But the Court is not intending to instruct at all on assumption of the risk. That’s not injected in any way into the case. So to give that instruction, I thought .it would just further muddy the waters potentially of the jurors’ understanding of what they were or were not being asked to decide. [COLLINS’ COUNSEL]: And I understand that, Your Honor, and I understand and in cases I have felt that the issue of instructing on assumption of the risk is a danger because it’s not even in the case, okay. But here, I think it’s potentially, depending on how the jury interprets facts, it is potentially— THE COURT: I’m not going to allow anybody to argue assumption of the risk.

That isn’t in the case. There’s not going to be any argument that would potentially confuse the jury based on the instructions. [COLLINS’ COUNSEL]: But I think it could be because, and also it’s not only what is argued, but it’s the inferences that the jury may draw on their own. In other words— THE COURT: The jurors are going to come in and say, well, I know that there are two doctrines. One is assumption of the risk.

The other is contributory/comparative negligence. [COLLINS’ COUNSEL]: No, but what I think— THE COURT: You got rid of all those people. [COLLINS’ COUNSEL]: What might happen is that they could say they believe [the Decedent] was standing there, he knew that the [pantograph] was energized and he took, you know, the classic voluntarily assuming, getting close to the [pantograph] to do his job. THE COURT: But here’s my point. First, is it a correct statement of law, I don’t have any argument with that, but obviously I’m not, you know, I’m not giving pedestri ³⁰⁷ an instructions and other instructions that are inapplicable. I think that both counsel understand and can argue the portion that pertains to the comparative/contrib and keep that as clear as possible, so I’m going to deny that.

Collins argues that the trial court erred in refusing to instruct the jury that assumption of risk is not a defense in a FELA case. Collins contends that, whereas the instruction is a correct statement of law and was not fairly covered by the other instructions given, whether such an instruction was proper “turns upon whether there was evidence before the jury upon which an inference could be drawn that [the decedent] assumed the risk of his injuries.” According to Collins, “there was ample evidence from which the jury could have, and most likely did, improperly draw the conclusion that [Collins] should not recover because [the Decedent] assumed the risk of the incident.” Amtrak counters that the court properly denied Collins’ request, because “the evidence and arguments of counsel did not raise the defense of assumption of risk.” Instead, Amtrak asserts that the evidence and argument at trial “fell well within the category of comparative negligence.” Maryland Rule 2-520 provides in pertinent part: (a) When given. The court shall give instructions to the jury at the conclusion of all the evidence and before closing arguments and may supplement them at a later time when appropriate. In its discretion, the court may also give opening and interim instructions.

(c) How given. The court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instructions of its own, or by combining any of these methods. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given. Accordingly, a court may decline to give a requested instruction in the event that the instruction is “superfluous,” “confus ³⁰⁸ ing,” or “inapplicable to the'case at hand.” S. Mgmt.

Corp. v. Mariner, 144 Md.App. 188, 198-99 , 797 A.2d 110 (2002). At issue in the case sub judice is whether instructing the jury on assumption of risk is applicable to the evidence generated at trial. 6 Because contributory negligence reduces a plaintiffs damages under the FELA while assumption of risk does not, “courts have the delicate job of separating out evidence on one theory from evidence on the other.” Fashauer, 57 F.3d at 1274 . When inapplicable under the facts of a given case, “courts should spare juries intricate descriptions of opaque legal doctrines,” such as the doctrine of assumption of risk; however, when “the facts of the case present a danger of jury confusion on the issue, an assumption of risk charge should be given.” Id. at 1275 . The United States Court of Appeals for the Third Circuit explained: [Wjhen the evidence adduced at trial presents a danger that the jury might reduce a plaintiffs recovery based on the impermissible theory of assumption of risk, then the trial judge should instruct the jury on how that doctrine differs from contributory negligence.

But when the evidence presents no such danger, then an adequate charge on contributory and comparative negligence suffices. Of course, the most difficult part of the inquiry is determining when the facts merit an assumption of the risk instruction. Id. “Although there is some overlap between assumption of risk and contributory negligence, generally the two defenses are not interchangeable.” Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1316 (9th Cir.1986). “At common law an employee’s voluntary, knowledgeable acceptance of a dangerous condition that is necessary for him to perform his duties constitutes an assumption of risk. Contributory negligence, in contrast, is a careless act or ³⁰⁹ omission on the plaintiffs part tending to add new dangers to conditions that the employer negligently created or permitted to exist.” Fashauer, 57 F.3d at 1275 (quoting Taylor, 787 F.2d at 1316 ); accord Jenkins v. Union Pac.

R.R. Co., 22 F.3d 206, 210 (9th Cir.1994); Rivera v. Farrell Lines, Inc., 474 F.2d 255, 257 (2d Cir.1973), cert. denied, 414 U.S. 822 , 94 S.Ct. 122 , 38 L.Ed.2d 55 (1973). A finding of an employee’s contributory negligence on the basis of “the strength of [the employee’s] knowledge that a dangerous condition in his line of duty existed and his working in that line of duty” nonetheless, is actually “assumption of risk masquerading under another name.” Rivera, 474 F.2d at 257-58 . In other words, evidence of a plaintiffs “knowledgeable acceptance of a dangerous condition” implicates the defense of assumption of the risk, not contributory negligence. Joyce v. Atl.

Richfield Co., 651 F.2d 676, 682-83 (10th Cir.1981); see also Koshorek v. Pa. R.R. Co., 318 F.2d 364, 367 (3d Cir.1963). Noting that the concept of assumption of risk “often is used as an umbrella term to describe a number of discrete and dissimilar concepts,” the United States Court of Appeals for the Third Circuit discussed in Fashauer “what theory of assumption of risk Congress sought to prohibit when it barred the defense under the FELA.” 57 F.3d at 1275-76 . The Court elucidated: “In our view, the history behind the FELA and the Supreme Court’s pronouncements in pre- and post-FELA cases makes clear that assumption of risk in the employment context refers to implied consent,” i.e., an employee’s implied consent to assume the risks entailed in employment.

Id. at 1279 . The Court held: A plaintiffs recovery under the FELA never can be reduced on the basis that he or she implicitly consented to the risk by accepting employment with the railroad or by performing a task in the manner which the employer directed. This is true regardless of whether the plaintiff acted reasonably or unreasonably. Thus, even when a jury examining a plaintiffs position objectively would conclude that he acted unreasonably in accepting employment, or performing a ³¹⁰ task at all, such unreasonable actions for FELA purposes are characterized as assumption of risk rather than contributory negligence.

Id. at 1280 . In so holding, however, the Court further stated: [W]hen reasonable alternatives besides quitting or refusing to perform the task in an unsafe way are available, a plaintiff is charged with acting with due care and will be held responsible for acting unreasonably. In such circumstances when the plaintiff unreasonably assumes a known risk, his fault in that regard is negligence and his damage award may be subject to apportionment. Examples of evidence of contributory negligence include failing to follow specific safety instructions reasonably calculated to protect the employee from the injury that occurred; failing to report a defect when the evidence establishes that such reporting would be productive; and failing to act prudently in performing the task.

Id. (first emphasis added) (second emphasis in original) (citation and internal quotations omitted). Based on the aforementioned principles, if no evidence of impermissible assumption of risk has reached the jury, a correct instruction on contributory negligence will do. However, if, either because of evidence introduced at trial or because of statements made by counsel in opening or closing arguments, there is a risk that the implied consent theory of assumption of the risk seeped its way into the case, the jury should be instructed that it may not find contributory negligence on the part of the plaintiff ... simply because he acceded to the request or direction of the responsible representatives of his employer that he work at a dangerous job, or in a dangerous place, or under unsafe conditions.

Id. (internal quotation omitted) (alteration in original). A Right of Refusal In the case sub judice, Collins argues that a jury instruction on assumption of risk was necessary because “Amtrak relied ³¹¹ heavily upon the argument that [the Decedent] could have declined to perform the work in question if he thought it was dangerous,” an Amtrak policy “referred to repeatedly ... as the ‘Right of Refusal.’ ” According to Collins, “[t]he explanation of this right and Collinsf] failure to exercise the right could clearly have been interpreted as a ‘voluntary, knowledgeable acceptance of a dangerous condition.’ ” We disagree and explain. Preliminarily, we set forth a summary of the evidence adduced at trial relating to Amtrak’s Right of Refusal.

Amtrak elicited testimony from several witnesses that if the Decedent felt unsafe working under an energized line, he could have exercised his right of refusal and still done the alignment readings, but under a de-energized line. Boone testified that, had anyone felt unsafe, they had the right to refuse, agreeing that any member of the crew, including the Decedent, “could have said I want to work with the power off and they would have ivorked with the power off.” (Emphasis added). Gerald Nangle, Amtrak’s Director of Electrical Traction Maintenance, who was responsible for the day to day operation and maintenance to Amtrak’s electric traction between Washington and Boston, testified that the Right of Refusal is that “[a]ny member of the engineering department has the right to refuse work that they feel is unsafe.” When asked whether any member of the crew could have, “consistent with Amtrak policy, said Pm not doing this job under energized [sic]. We are going to call dispatch or whoever we have to call and work under de-energized wire?,” Nangle responded: “Yes, they could have.” (Emphasis added).

During his testimony, Breder agreed that any member of the crew, once he learned that the job would be conducted under an energized line, had the right of refusal. According to Breder, Amtrak’s Right of Refusal “is basically if you don[’]t feel something is safe you bring it up and we try to make it safe in order to do the job.” (Emphasis added). Breder described Boone as the type of foreman who would ³¹² listen to an objection to a procedure and “say, you know thank you for bringing that up[.] I didn[’]t notice that, or I didn[’]t know that you would hesitant [sic] in doing this, then we would do another way [sic] or make it safe” (Emphasis added). Backert testified that there were no exceptions to the Right of Refusal and stated that, during his fifteen plus years working for Amtrak, he never knew of any employee who had been disciplined for exercising his Right of Refusal.

Amtrak