Haischer v. CSX Transportation, Inc.

WILNER, Judge. Petitioner, Francis Haischer, sued his former employer, CSX Transportation, Inc., under the Federal Boiler Inspection Act (BIA), 49 U.S.C. §§ 20701-03 , for injuries he sustained while working as a locomotive engineer on March 1, 2000. A jury in the Circuit Court for Baltimore City found liability on CSX’s part and awarded $203,898 in damages, including $101,949 for lost wages. On CSX’s appeal, the Court of Special Appeals affirmed the judgment as to liability but concluded that the Circuit Court had erred in precluding collateral source evidence offered by CSX, and it therefore remanded for a new trial limited to damages.

CSX Transp., Inc. v. Haischer, 151 Md.App. 147 , 824 A.2d 966 (2003). We granted cross-petitions for certiorari to consider whether the Court of Special Appeals erred (1) in concluding that the evidence was sufficient to sustain liability under the BIA, and (2) in holding that the collateral source evidence offered by CSX was admissible. We agree with the intermediate ¹²³ appellate court with respect to the first issue but shall reverse as to the second. BACKGROUND The accident in question occurred around 11:30 p.m. on March 1, 2000.

Haischer and Rudy Carroll, the conductor, had been working, without incident, as a two-man crew on a switching job. When he went on duty just before 4:00, Haischer looked over the locomotive but did not find anything to be in improper condition. Near the end of their shift, Haischer and Carroll were in the locomotive on a side track waiting for permission from the dispatcher to enter the main track. Inside the cab is a unit known as a Head of Train Device (HTD), which appears to be about the shape and size of a stereo receiver and sits on top of a console located immediately to the left of where the engineer sits.

When in use, the device enables the engineer to monitor air pressure throughout the train. The back cover of the device, which is not immediately visible to the engineer when sitting in his seat, faces a small set of steps that lead to the nose area of the cab. The back cover of the HTD is attached to the unit by a piano hinge on the bottom and by two screws at the top. While waiting for clearance to move, Haischer left his seat and went to a refrigerator in the nose of the engine to get some water for himself and Mr. Carroll.

Haischer said that he may have brushed against the cabinet as he left, as there was very little room in the cab at that point. The steps leading to the nose are steep — 12 to 14 inches apart — and the area in the nose is constricted. Thus, Haischer said, when returning to the cab, he had to “kind of get your shoulders out first and then sort of take off like a runner from the starting block.” Prior to his return, the screws holding the HTD door closed had come loose, and the door was hanging down on its hinge. As Haischer returned to the cab, he drove his shoulder hard into the hanging door, causing him to drop to his knees.

Haischer said that it was both dark and noisy in the cab and ¹²⁴ that he did not see or hear the HTD door come open. The screws apparently were still in their holes, as Haischer testified that, after the accident, the door was re-closed and the screws tightened in order to keep the door shut. Haischer claimed that he had not previously noticed that the door had come open. Most of that part of Haischer’s testimony was corroborated by Mr. Carroll.

As soon as he returned to the yard, Haischer reported the incident to the yardmaster and then immediately filed an accident report in which he claimed that the accident resulted from defective equipment, in that the rear cover of the HTD “was not secured properly.” He kept an already-scheduled appointment with his doctor two days later to get a cortisone shot for pre-existing pain in the shoulder, and then, on March 20, saw an orthopaedic surgeon, Dr. Wardell, who had been suggested to him by a friend. Dr. Wardell initially diagnosed his condition as an acute exacerbation of a pre-existing calcium deposit and resulting bursitis; he recommended, and ultimately performed, surgery to correct that condition and determine if anything else was amiss. The surgery revealed a tear in the rotator cuff; the doctor removed the calcium deposit and repaired the tear. Dr. Wardell later opined that the rotator cuff tear was caused by the accident and that, because of the demands of the job, Haischer was permanently disabled from continuing to work as a locomotive engineer.

Haischer made casual inquiries into other employment but declined vocational rehabilitation assistance belatedly offered by CSX and has not returned to work since the accident on March 1, 2000. In June, 2000, Haischer filed suit under both the Federal Employer’s Liability Act (FELA), 45 U.S.C. §§ 51-60 , and the BIA, alleging, among other things, that (1) the HTD device, and therefore the locomotive, was defective, (2) he had no knowledge of its defective condition, (3) he relied on information from others as to whether the locomotive was free from defective conditions or hazards, and (4) CSX should have known that the locomotive was unsafe due to the defective condition of the HTD device door. Prior to the commencement of voir dire, Haischer withdrew his separate FELA ¹²⁵ claim and proceeded solely on the BIA count. Liability on that count was the basis for the favorable judgment.

DISCUSSION Liability Under BIA Section 20701 of 49 U.S.C. provides, in relevant part, that a railroad carrier may use or allow to be used a locomotive only when the locomotive and its parts and appurtenances “are in proper condition and safe to operate without unnecessary danger of personal injury.” That statute, first enacted in 1911, was codified as § 23 of Title 45 of the U.S.Code, dealing with railroads, and was part of a number of boiler inspection and safety appliance laws to which the Federal Employer’s Liability Act applied. In 1994, the statute was code-revised and moved to title 49 as part of the Federal code revision effort. See P.L. 103-272, 108 Stat. 745 , and House Report (Judiciary Committee) No. 103-180, 7/15/93, accompanying H.R. 1758, 4 U.S.C.C.A.N. 818, 916-920 (103rd Cong., 2d. Sess.1994).

Standing alone, § 20701 does not purport to confer any rights on persons injured when coming into contact with a locomotive or parts thereof that are not in proper condition and safe to operate. As the Supreme Court made clear in Urie v. Thompson, 337 U.S. 163, 188 , 69 S.Ct. 1018, 1034 , 93 L.Ed. 1282 , 1302 (1949) with respect to the predecessor statute (title 45, § 23), however, “it has been held consistently that the Boiler Inspection Act supplements the Federal Employers’ Liability Act by imposing on interstate railroads ‘an absolute and continuing duty’ to provide safe equipment.” That conclusion, it stated, “stems, not from any express statutory language, but by implication from §§ 3-4 of the Federal Employers’ Liability Act, 45 U.S.C. §§ 53-54 ... which bar pleadings of, respectively, contributory negligence and assumption of risk ‘in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.’ ” ¹²⁶ The Court explained that, although it is § 1 of FELA ( 45 U.S.C. § 51 ) that creates the basis of an employee’s suit for violation of the BIA and that section refers to defects due to the railroad’s “negligence,” it was the Congressional intent “to treat a violation of the Safety Appliance Act as ‘negligence’— what is sometimes called negligence per se.” Id. at 189, 69 S.Ct. at 1034 , 93 L.Ed. at 1303, (quoting from San Antonio & A.P.R. Co. v. Wagner, 241 U.S. 476, 484 , 36 S.Ct. 626, 630 , 60 L.Ed. 1110, 1117 (1916)). Thus, the Court concluded that the BIA is substantively an amendment to the FELA and “dispenséis], for the purposes of employees’ suits, with the necessity of proving that violations of the safety statutes constitute negligence; and making proof of such violations is effective to show negligence as a matter of law.” Urie v. Thompson, supra, at 189, 69 S.Ct. at 1034 , 93 L.Ed. at 1303. See also Lilly v. Grand Trunk W. R.R. Co., 317 U.S. 481, 485 , 63 S.Ct. 347, 351 , 87 L.Ed. 411, 415 (1943): (“Negligence is not the basis for liability under the [Boiler Inspection] Act.”).

CSX contends that Haischer failed to present any evidence that the HTD device was not in “proper condition” or was not “safe to operate without unnecessary danger of personal injury” — that it was defective in any way. The railroad suggests three possible reasons for the door coming loose — that Haischer brushed against it, causing it to fall open; that it came open due to continuous vibration from operation of the engine; or that maintenance personnel failed to tighten the screws adequately — and it maintains that none of those reasons creates liability under BIA. The first two possible reasons, it claims, do not show any defect in the device, which is a necessary element for liability; the third, it argues, constitutes not a defect in the device but negligence on the part of other employees, which may be the basis for liability under FELA but not under BIA. In that regard, it uses the sword of strict liability as a shield: if negligence is not the basis for liability under BIA, the railroad cannot be liable for an injury caused by its negligence.

The railroad’s position is supported neither by case law interpreting BIA nor by logic. The simple answer is that it ¹²⁷ really does not matter which of the three suggested reasons actually caused the door to come loose. As was shown from the incident itself, it was at least a jury question of whether, when the door came loose and was left hanging, the device, and, consequently, the locomotive, ceased to be in “proper condition” and, in fact, became unsafe to operate. It was the railroad’s duty under § 20701 to make certain that the screws were sufficiently tightened so that they would not come loose, whether by someone brushing against the door or because of normal vibration from the engine.

Even though traditional negligence need not be shown under BIA, both of those prospects were entirely foreseeable, and, to satisfy its statutory duty to provide safe equipment in proper condition, the railroad was obliged to assure, through appropriate maintenance, that the screws would remain securely in place. The failure to do so constitutes the kind of “negligence per se” that the Urie Court held was imposed by BIA. Compare Zachritz v. St. Louis-San Francisco Ry. Co., 336 Mo. 801 , 81 S.W.2d 608 (1935) (plaintiff injured when he fell while attempting to board locomotive by grabbing handrail; no defect shown in handrail); Ford v. New York, N.H. & H.R. Co., 54 F.2d 342 (2nd Cir.1931) (same); Harlan v. Wabash Ry.

Co., 335 Mo. 414 , 73 S.W.2d 749 (1934) (plaintiff injured when trapdoor was negligently left open; no defect in trapdoor). Lilly v. Grand Trunk W. R.R. Co., supra, 317 U.S. 481 , 63 S.Ct. 347 , 87 L.Ed. 411 , illustrates the point. A brakeman, standing on top of a locomotive tender, was attempting to pull a water spout over the tender when he slipped on ice that had formed on the top of the tender. He claimed that the ice had formed because of a small leak at the collar of a manhole on the tender, from which water flowed onto the surface of the tender.

The jury, in a special verdict, found that there was no such leak, which raised the question of whether the general verdict for the brakeman could stand. The Supreme Court held that, under BIA, the verdict could stand — that BIA imposed an absolute and continuing duty to maintain the locomotive and its appurtenances in safe condition, without unnecessary peril to life or limb and that “[t]he ¹²⁸ use of a tender, upon whose top an employee must go in the course of his duties, which is covered with ice seems to us to involve ‘unnecessary peril to life or limb’ — enough so as to permit a jury to find that the Boiler Inspection Act has been violated.” 317 U.S. at 486 , 63 S.Ct. at 351 , 87 L.Ed. at 415 . That conclusion was founded on the Court’s rejection of the notion that the BIA covers “only defects in construction or mechanical operation” and its view that “[cjonditions other than mechanical imperfections can plainly render equipment unsafe to operate without unnecessary peril to life or limb.” Id. at 487-88 , 63 S.Ct. at 352 , 87 L.Ed. at 416 . See also Topping v. CSX Transp., Inc., 1 F.3d 260 (4th Cir.1993) (relying on Lilly in upholding liability under BIA for injuries suffered when locomotive engineer slipped on metal object, holding that it was a jury question whether presence of loose object in cab of engine rendered locomotive unsafe to operate).

Collateral Source Evidence The railroad’s position, throughout trial, was that the incident was, at worst, a minor one which could not have produced the disabling injuries Haischer was claiming and that he was essentially a malingerer. Because of his claimed disability, Haischer was receiving at least $2,320/month from the Railroad Retirement Board, and CSX wanted that fact communicated to the jury. Prior to trial, Haischer moved in limine to preclude CSX from offering evidence of his receipt of those disability benefits, citing Eichel v. New York Cent. R.R. Co., 375 U.S. 253 , 84 S.Ct. 316 , 11 L.Ed.2d 307 (1963) for the proposition that such collateral source evidence was inadmissible.

CSX responded that there were exceptions to that rule, that the court had some discretion to admit such evidence, at least where the plaintiff claimed to be impoverished by reason of his inability to work, and that CSX would alert the court in advance if it intended to offer that kind of evidence. Both sides seemed to agree that it was not necessary to decide the issue at that time, so long as CSX did not produce the evidence prior to a court ruling. ¹²⁹ The issue arose again at the end of Haischer’s case, when, based on certain statements made by plaintiffs counsel in his opening statement and evidence produced by Haischer that CSX regarded as suggesting either financial strain or possible malingering on Haischer’s part, CSX sought permission from the court to call Haischer, as a defense witness, to testify regarding the retirement benefits he was receiving. CSX argued that collateral source evidence was admissible to show malingering and to rebut a claim of financial hardship. CSX alluded first to the comment in plaintiffs counsel’s opening statement that “this is [Haischer’s] only day or few days in court and so I would ask you to remember that, and whatever the outcome is, this is it for him.

If his situation changes five years, ten years down the road, he’s not coming back.” That statement, CSX argued, was an indication of financial hardship. The railroad called attention next to three aspects of Haischer’s testimony. Early in direct examination, Haischer recounted some of the fringe benefits he had received as part of his employment compensation package, including health insurance. Later, he was asked whether he was continuing to receive those fringe benefits, and he responded that the insurance would continue for another two years for himself and one year for his 15-year-old son who lived with him, and that thereafter he would have to pick up that insurance himself.

He estimated the cost at about $6,000/ year. The second segment of Haischer’s testimony noted by CSX came when he was asked how long he had planned to continue working for the railroad, and he responded: “Well, depending on how the economy went, and my 401K, I was putting the maximum into it, but the way things were stacking up, it looked like I was going to have to go until I was 65. Figuring my son would go to college, I would have to do that and I wanted some money set aside for my own retirement. So I was pretty much figuring on 65.” CSX then alluded to testimony that Haischer had given some consideration to returning to school and quoted him as ¹³⁰ saying “how could I go back to school to better myself in that fashion and pay for the tuition and pay for the books and all the accouterments that I would need to go back to school when there’s no money coming in?” Upon our review of the record, we are unable to find any such statement in Haischer’s testimony.

CSX treated those statements not only as an indication of financial distress and malingering but also as misleading, as suggesting that Haischer had no income. Relying on Eichel , the trial court denied the request. It did not interpret counsel’s opening remark as a suggestion that a verdict in this case would be Haischer’s only source of income and did not regard the testimony noted by CSX as a sufficiently strong indication of either financial distress or malingering to overcome the prejudice that would accrue from admitting the collateral source evidence. On appeal, CSX expanded the basis of its argument in favor of allowing the collateral source evidence.

It complained not only about counsel’s opening statement and Haischer’s testimony regarding his eventual need to replace the health insurance but