Page v. National Railroad Passenger Corp.

KEHOE, J. In the taxonomy of the law, the Federal Employers’ Liability Act, 45 U.S.C. § 51 , et seq., is a platypus. Intended to provide a remedy for injured railroad workers, the FELA “hovers ambivalently between workers’ compensation law and the common law of negligence. It is neither, but it partakes of characteristics of both.” CSX v. Miller, 159 Md.App. 123, 129 , 858 A.2d 1025 (2004). This case calls us to consider the roles that two basic concepts of negligence law, res ipsa loquitur and proximate cause, play in FELA claims.

Donzel M. Page filed suit against his former employer, the National Railroad Passenger Corporation (“Amtrak”), seeking recompense for a work-related injury. The Circuit Court for Baltimore City granted summary judgment in Amtrak’s favor. Page has appealed and presents two issues, which we have consolidated and reworded: In an action based upon the Federal Employers’ Liability Act, did the circuit court err in granting summary judgment in favor of Amtrak on the basis that Page presented no evidence that Amtrak breached any duty to him and that any negligence on Amtrak’s part was not the proximate cause of his injuries? ⁴⁶⁷ We conclude that Page presented evidence, albeit circumstantial, from which a fact-finder could reasonably infer that Amtrak was negligent and that physical injury was a foreseeable result of that negligence. While the relationship between Amtrak’s negligence and Page’s injuries may not satisfy the common law requirements for proximate causation, a plaintiff in a FELA action need only prove that “ ‘employer negligence played any part, even the slightest, in producing the injury....’” CSX Transp. v. McBride, - U.S. -, 131 S.Ct. 2630 , 2638 n. 2, 180 L.Ed.2d 637 (2011) (quoting Rogers v. Missouri Pac.

R.R. Co., 352 U.S. 500, 506 , 77 S.Ct. 443 , 1 L.Ed.2d 493 (1957)). Page has met this unexacting threshold. Therefore, we will vacate the judgment entered on Amtrak’s behalf and remand this case to the circuit court for trial. Factual and Procedural Background We set out the facts in the light most favorable to Page, as the non-moving party to the motion for summary judgment. 1 See Reiter v. Pneumo Abex, 417 Md. 57, 67 , 8 A.3d 725 (2010).

We first look to Page’s deposition which provides the following information. On February 22, 2007, Page, a police officer employed by Amtrak, was on duty near the information desk in Pennsylvania Station in Baltimore, Maryland. At approximately 5:00 pm, Page was approached by an Amtrak passenger who informed Page that a baggage cart was lying on a track adjacent to a passenger platform on the lower level of the terminal. Page’s duties included removing obstructions from the railroad tracks within the terminal.

Page, accompanied by Charles Harris, an Amtrak customer service employee (a “Red Cap”), went to the passenger platform to investigate. At about the time they reached the lower level of the terminal, Page and Harris learned that there was an inbound train scheduled to arrive on the track that was blocked by the ⁴⁶⁸ baggage cart. Harris made an emergency call on his radio to the train’s engineer and the train stopped approximately 60 feet from the cart. When Page arrived on the passenger platform, he observed that the train was unable to unload its passengers because of the track blockage.

Page walked to the point of the platform closest to the cart, sat down on its edge, 2 and dropped onto the ballast adjacent to the track. In his deposition, he estimated that his feet were “between four and five feet” above the ballast when he dropped down. Page landed “a little off balance” and felt pain in his left hip. He pushed the cart off the tracks and walked back along the tracks to a set of stairs leading up to the platform.

The train then pulled into position and disembarked its passengers onto the platform. The layout of the platform was such that there were stairs at one end of the platform and a ramp at the other to provide access to the track. The stairs and the ramp were each about 100 yards from Page’s location when he dropped off the platform. Page testified that he did not take the time to use the stairs or the ramp because he “wanted to get the patrons off the train in a timely fashion” to avoid a train delay.

At the end of his shift, Page filed a report about the incident. At that time, he declined medical attention. By the following day, Page’s symptoms had worsened and he sought medical treatment. His physical condition continued to deteriorate and, as a result of the injury, Page eventually became unable to perform his duties for Amtrak.

When deposed, Harris, the Red Cap, stated that he had been employed as a Red Cap by Amtrak for 26 years. When describing the carts, Harris explained that they are “typical push cart[s]” 3 that have signs on them indicating that they are for Amtrak employee use only. Most of the carts have a cable ⁴⁶⁹ that Amtrak employees could wrap around fixed structures on the platform or within the building to keep the public from using the carts. Harris stated that the use of, and responsibility for, the baggage carts is restricted to Amtrak employees.

Typically the carts are used by Red Caps or baggage handlers to assist in luggage handling. However, all Amtrak employees are permitted to use the carts. While there is no formal or uniform procedure for monitoring the carts, Amtrak’s custom is that the employee using the cart is responsible for monitoring the cart. It is against Amtrak practice and policy to leave carts unattended on passenger platforms.

Harris stated that, while Amtrak does not permit non-employees to use baggage carts, “people being people, a lot [of] time[ ] they do take carts and they do use carts.” Harris testified that carts end up on the tracks at Pennsylvania Station “maybe three to four times a year.” 4 On October 10, 2008, Page filed a complaint in the Circuit Court for Baltimore City against Amtrak under the provisions of the FELA. In his complaint, Page asserted that Amtrak negligently failed to provide a reasonably safe workplace and that this negligence was a cause of his injuries. After the conclusion of written discovery and depositions, Amtrak filed a motion for summary judgment based on two grounds. First, Amtrak argued that, in order to recover, a “FELA plaintiff is required to prove traditional common law elements of negligence: breach, foreseeability, and causation.” Amtrak asserted that, because Page had no direct evidence as to how the baggage cart happened upon the track, Page had no evidence of Amtrak’s breach of duty.

In addition, Amtrak argued that, because “Page’s decision to jump to the tracks clearly constitutes contribution or voluntary activity ... the doctrine of res ipsa loquitur is not applicable in this case.” ⁴⁷⁰ Second, Amtrak contended that “Page’s careless choice to jump to the tracks, instead of using a safe route, was the sole proximate cause of his injury.” In response, Page argued that, under the FELA, Amtrak was liable if any negligence on its part played any role in producing his injuries. The FELA requires that employers take reasonable precautions to provide employees with a safe workplace. According to Page, Amtrak’s failure to take reasonable precautions to manage the baggage carts resulted in a baggage cart lying on a live track, thereby creating an unsafe workplace. Because Page injured himself while performing his duty of retrieving the cart from the track, Amtrak’s negligence played some role in causing his injuries.

Page further notes that his alleged contributory negligence, if any, is not a bar to recovery under the FELA. Page concluded that, as soon as he presented evidence of Amtrak’s duty, Amtrak’s breach of that duty and his own resulting injuries, a jury issue was created under the FELA and summary judgment was inappropriate. After a hearing on September 23, 2009, the circuit court granted Amtrak’s motion for summary judgment and entered final judgment in favor of Amtrak. The court stated in a written order: There is no evidence that negligence by the Defendant was a cause of Plaintiffs injuries because there is no evidence that Defendant breached any duty or that any breach was the cause of Plaintiffs injuries.

The doctrine of res ipsa loquitur does not apply because Plaintiff was not without fault in causing his injuries. There is no evidence that Defendant failed to provide Plaintiff with a reasonably safe place to work or that his fellow employees were negligent in that they failed to adequately secure the baggage cart which Plaintiff was attempting to retrieve. There is no evidence that an appearance of the baggage cart on the tracks was the actual and proximate cause of Plaintiffs injuries. ⁴⁷¹ I. The FELA In order to put the parties’ contentions into proper focus, we will briefly review the pertinent provisions of the FELA. This is well-ploughed ground in Maryland because the FELA and related statutes 5 have been the subject of several recent decisions by this Court and the Court of Appeals.

See Collins v. Nat'l R.R., 417 Md. 217, 230-41 , 9 A.3d 56 (2010), cert dismissed, - U.S. -, 131 S.Ct. 1811 , 179 L.Ed.2d 673 (2011); Haischer, 381 Md. at 125-28, 848 A.2d 620 (interpreting the Federal Boiler Inspection Act); CSX v. Bickerstaff, 187 Md.App. 187, 206-08 , 978 A.2d 760 (2009); Norfolk S. Railway Corp. v. Tiller, 179 Md.App. 318, 322-26 , 944 A.2d 1272 (2008); and CSX v. Miller, 159 Md.App. 123, 128-46 , 858 A.2d 1025 (2004). As Judge Moylan explained for this Court in Miller , the FELA, originally enacted in 1906, is a remedial statute intended to modify common law rules of negligence in actions brought by employees of railroads to recover for injuries suffered in the course of their employment. 159 Md.App. at 129-30 , 858 A.2d 1025 . The Act, and the cases interpreting it, have created a substantive federal body of law pertaining to the allocation of risk between a railroad and its employees. Collins, 417 Md. at 231 n. 10, 9 A.3d 56 (“ ‘As a general matter, FELA cases adjudicated in state court are subject to state procedural rules, but the substantive law governing them is federal.’ ”) (quoting St. Louis S.W. Ry.

Co. v. Dickerson, 470 U.S. 409, 411 , 105 S.Ct. 1347 , 84 L.Ed.2d 303 (1985)). The purpose of the statute was, in Justice Douglas’s striking phrase, “to put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations.” Wilkerson v. McCarthy, 336 U.S. 53, 68 , 69 S.Ct. ⁴⁷² 413, 93 L.Ed. 497 (1949) (concurring opinion). To that end, the FELA, an initially enacted and by subsequent amendment, abolished certain common law defenses otherwise available to employers, such as assumption of risk, 6 the fellow servant doctrine, 7 and contributory negligence. 8 Miller, 159 Md.App. at 133-36 , 858 A.2d 1025 . What was less clear, at least initially, was the degree to which the Act modified common law rules of causation.

In a common law negligence action, a plaintiff must prove that the defendant’s breach of duty was both a factual and a legally cognizable (or proximate) 9 cause of the plaintiffs injury. In contrast, the FELA provides that: Every common carrier by railroad while engaging in commerce between any of the several States ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such ⁴⁷³ injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence in its ... track, roadbed ... or other equipment. 45 U.S.C. § 51 (emphasis added). Earlier Supreme Court decisions construing § 51 of the FELA were not consistent as to whether proof of proximate cause was necessary for a plaintiffs recovery. Compare O’Donnell v. Elgin, Joliet & E. Ry.

Co., 338 U.S. 384, 394 , 70 S.Ct. 200 , 94 L.Ed. 187 (1949) (“[P]laintiff was entitled to a[n] . .. instruction ... which rendered defendant liable for injuries proximately resulting therefrom.”) (applying Federal Safety Appliance Act), and Davis v. Wolfe, 263 U.S. 239, 243 , 44 S.Ct. 64 , 68 L.Ed. 284 (1923) (“[A]n employee cannot recover ... if the [employer’s] failure ... is not a proximate cause of the accident ....”) (applying Federal Safety Appliance Act), with Union Pac. R.R. Co. v. Huxoll, 245 U.S. 535, 537 , 38 S.Ct. 187 , 62 L.Ed. 455 (1918) (Instruction that railroad was liable if negligence contributed “ ‘in whole or in part’ ” to accident was consistent with the FELA.). The Supreme Court clearly set forth the appropriate causation standard for FELA cases in Coray v. S. Pac. Co., 335 U.S. 520, 523-24 , 69 S.Ct. 275 , 93 L.Ed. 208 (1949) and Rogers v. Missouri Pac.

R.R. Co., 352 U.S. 500, 506 , 77 S.Ct. 443 , 1 L.Ed.2d 493 (1957). In Coray , the plaintiff brought an action under the FELA and the Federal Safety Appliance Act, which provided that certain safety violations by railroads constituted negligence per se. The trial court directed a verdict in favor of the railroad, the Utah Supreme Court affirmed the trial court and the Supreme Court reversed. The Utah Supreme Court held that the railroad’s negligence, which caused the brakes to malfunction in a train, was not the proximate cause of decedent’s death (which resulted when a motorized rail car he was operating collided with the train).

In commenting on this analysis, the Supreme Court stated: ⁴⁷⁴ The Utah Supreme Court ---- discussed distinctions between “proximate cause” in the legal sense, deemed a sufficient cause to impose liability, and “cause” in the “philosophic sense,” deemed insufficient to impose liability. It considered the stopping of this train to have been a cause of decedent’s death in the “philosophic sense” in that the stopping created “a condition upon which the negligence of plaintiffs’ intestate operated,” one perhaps of many causes “so insignificant that no ordinary mind would think of them as causes.” The court added, however, that the stopping [of the first train] “was not the legal cause of the [collision] .... ” The language selected by Congress to fix liability in cases of this kind is simple and direct. Consideration of its meaning by the introduction of dialectical subtleties can serve no useful interpretative purpose. The statute declares that railroads shall be responsible for their employees’ deaths “resulting in whole or in part” from defective appliances such as were here maintained.

Coray, 335 U.S. at 523-24 , 69 S.Ct. 275 (emphasis added). Coray involved both the Federal Safety Appliance Act and the FELA. Rogers expanded Coray’s holding to claims based solely on the FELA itself. In Rogers , the employee worked on a “section gang” maintaining track beds.

His assignment on the day in question was setting fire to weeds growing close to the tracks. A draft created by a passing train caused the smoldering weeds to flare up. Retreating from the fire, Rogers stepped backwards and was injured when he slipped and fell from a walkway running alongside the track. He contended that the railroad negligently failed to maintain safe footing for line maintenance workers.

Rogers, 352 U.S. at 502-03 , 77 S.Ct. 443 . A jury verdict in his favor was reversed by the Missouri Supreme Court on the basis that the evidence did not support the award. Id. at 501 , 77 S.Ct. 443 . We are concerned with an alternative ground for the Missouri court’s holding, which was that Roger’s own conduct was “at least as probable a cause for ⁴⁷⁵ his mishap as any negligence” of the railroad.

Id. at 505 , 77 S.Ct. 443 . The Supreme Court rejected this reasoning: The [Missouri Supreme Court’s] opinion may also be read as basing the reversal on another ground, namely, that it appeared to the court that the petitioner’s conduct was at least as probable a cause for his mishap as any negligence of the respondent, and that in such case there was no case for the jury.... The Missouri court’s opinion implies its view that this is the governing standard by saying that the proofs must show that “the injury would not have occurred but for the negligence” of his employer, and that “the test of whether there is causal connection is that, absent the negligent act the injury would not have occurred.”1 J That is language of proximate causation which makes a jury question dependent upon whether the jury may find that the defendant’s negligence was the sole, efficient, producing cause of injury. Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.n It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence.1 J Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death.[ ] Id. at 505-06 , 77 S.Ct. 443 (footnotes omitted; emphasis added.) The Supreme Court reaffirmed the appropriate standard for causation in FELA actions in McBride.

In doing so, it held that the Coray/Rogers standard continues to displace common law rules of proximate causation in FELA cases. McBride, a locomotive engineer, filed a FELA action to recover for a work-related injury. At trial, the employer ⁴⁷⁶ requested a jury instruction that, in order to prevail, the plaintiff was required to show that the employer’s negligence was “a proximate cause of the injury,” as well as another instruction explaining the concept of proximate cause. 131 S.Ct. at 2635. Instead, the trial court gave the following instruction: “Defendant ‘caused or contributed to’ Plaintiffs injury if Defendant’s negligence played a part — no matter how small — in bringing about the injury.

The mere fact that an injury occurred does not necessarily mean that the injury was caused by negligence.” Id. The Supreme Court granted the railroad’s petition for cer-tiorari to consider whether the causation instruction was proper in FELA cases. Id. at 2636. Before the Court, CSX raised two principle contentions.

First, it argued that: the Rogers “any part” test displaced only common-law restrictions on recovery for injuries involving contributory negligence or other “multiple causes.” Rogers “did not address the requisite directness of a cause,” hence that question continues to be governed by restrictive common-law formulations. Id. at 2637 (citation and footnote omitted). Writing for the majority, Justice Ginsburg, joined by four other justices, rejected this argument, noting that “Rogers instructed that ‘the test of a jury case [under FELA] is simply whether ... employer negligence played any part, even the slightest, in producing the injury.’ ” Id. at 2638 n. 2. (quoting Rogers, 352 U.S. at 506 , 77 S.Ct. 443 ).

In addition, Justice Ginsburg stated that “Rogers is most sensibly read as a comprehensive statement of the FELA causation standard.” Id. The majority’s analysis explicitly confirmed that considerations of traditional, common law rules of proximate causation play no role in assessing liability under the FELA. Id. at 2639-2640. As a second ground for reversal, CSX contended that: ⁴⁷⁷ proximate causation ... is a concept fundamental to actions sounding in negligence.

The Rogers “any part” instruction opens the door to unlimited liability, ... inviting juries to impose liability on the basis of “but for” causation. Id. at 2641. 10 In response to this concern, Justice Ginsburg stated: “[Rjeasonable foreseeability of harm,”... is indeed “an essential ingredient of [FELA] negligence.” ... Thus, “[i]f a person has no reasonable ground to anticipate that a particular condition ... would or might result in a mishap and injury, then the party is not required to do anything to correct [the] condition.”11 If negligence is proved, however, and is shown to have “played any part, even the slightest, in producing the injury,”n then the carrier is answerable in damages even if “the extent of the [injury] or the manner in which it occurred” was not “[p]robable” or “foreseeable.” Properly instructed on negligence and causation, and told, as is standard practice in FELA cases, to use their “common sense” in reviewing the evidence ..., juries would have no warrant to award damages in far out “but for” scenarios. Indeed, judges would have no warrant to submit such cases to the jury.

Id. at 2648 (citing, among other authorities, Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 117 , 83 S.Ct. 659 , 9 L.Ed.2d 618 (1963); Rogers, 352 U.S. at 506 , 77 S.Ct. 443 ; and 4 F. Harper, F. James, & O. Gray, Law of Torts § 20.5(6), p. 203 (3d ed.2007)) (internal citations and footnotes omitted; emphasis added in McBride ). 11 ⁴⁷⁸ However, while the causation that must be shown under the FELA may be “a relaxed standard of causation[,]” some degree of causation must still be proved. McBride, 131 S.Ct. at 2636; Miller, 159 Md.App. at 135 , 858 A.2d 1025 (“A FELA suit can be successfully pursued by an employee only if there is proof of some negligence on the part of the railroad [but] the negligence that must be shown in a FELA action is but a pale reflection of common law negligence.”).

II

Standard of Review When reviewing a trial court’s grant of summary judgment, this Court conducts a de novo review of the record before the circuit court to determine whether that court was legally correct. Reiter, 417 Md. at 67 , 8 A.3d 725 . We first determine whether there are disputed material facts. A dispute of fact is material when it might affect the outcome of the case.

Remsburg v. Montgomery, 376 Md. 568, 580 , 831 A.2d 18 (2003). If we conclude there are no disputed material facts, we decide whether the moving party is entitled to judgment as a matter of law. Reiter, 417 Md. at 67 , 8 A.3d 725 . In a FELA claim, a plaintiff is required “ ‘to present more than a scintilla of evidence in order to create a jury question on the issue of employer liability, but not much more.’ ” 12 Miller, 159 ⁴⁷⁹ Md.App. at 224, 858 A.2d 1025 (quoting Aparicio v. Norfolk & W. Ry.

Co., 84 F.3d 803, 810 (6th Cir.1996) (emphasis added in Miller)). In considering a motion for summary judgment in a FELA case we must also bear in mind that to “ ‘deprive [railroad] workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them.’ ” Phillips v. Chesapeake & Ohio Ry. Co., 475 F.2d 22, 24 (4th Cir.1973) (quoting Bailey v. Cent. Vermont Ry., 319 U.S. 350, 354 , 63 S.Ct. 1062 , 87 L.Ed. 1444 (1943)).

We will now turn to the merits of the case before us.

III

Analysis In order to prevail in a FELA claim, a plaintiff must establish: First, that the defendant is a railroad engaged in interstate commerce; ⁴⁸⁰ Second, that the plaintiff was an employee of the defendant in interstate commerce, acting in the course of his employment; Third, that the defendant or one of its employees or agents was negligent; and Fourth, that such negligence played a part, no matter how slight, in bringing about an injury to the plaintiff. 5 L. Sand et al, Modern Federal Jury Instructions-Civil P 89.02, pp. 89-38, 89-40 (2010); see also McBride, 131 S.Ct. at 2639-40 (similar instructions approved by every federal circuit that reviews FELA judgments); Collins, 417 Md. at 251 , 9 A.3d 56 (“A prima facie case of negligence under FELA is based on the common law elements in accordance with federal law: duty, breach, foreseeability, and causation.1-]C ]” (Footnotes omitted.)). The circuit court granted summary judgment in Amtrak’s favor because it concluded that Page failed to present sufficient evidence to create a jury issue on the third and fourth elements of the cause of action. The circuit court’s ratio decidendi was as follows: 1. Page was not able to show negligence on Amtrak’s part because he had no direct evidence as to how the cart ended up on the tracks and, because he was at fault, a fact-finder would be barred from inferring negligence on Amtrak’s part. 2.

Even assuming that Amtrak was negligent, the “appearance of a baggage cart on the tracks was [not] the actual and proximate cause of [Page’s] injuries.” We will discuss