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COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 08/12/2011. TRIAL JUDGE: HON. WINSTON L. KIDD.
FOR APPELLANT: GEORGE H. RITTER, JAMES EARL GRAVES, III.
FOR APPELLEE: C. E. SOREY, II, ARTHUR SADIN.
KING, JUSTICE. RANDOLPH, P.J., KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., DICKINSON, P.J., AND LAMAR, J.
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
¶1. Illinois Central Railroad Company (" Illinois Central" ) appeals from a jury verdict for Perry Brent awarded under the Federal Employers Liability Act (FELA) for injuries he sustained during his employment with Illinois Central. While we find that the trial court erred in failing to grant Illinois Central's motions for summary judgment and directed verdict on the FELA negligence per se claim, we nonetheless affirm the jury's general verdict based on Brent's FELA negligence claim.
FACTS & PROCEDURAL HISTORY
¶2. Perry Brent began his employment with Illinois Central in 1965, starting as a general laborer and eventually attaining the position of engineer. On October 27, 1999, Brent and conductor Steve Clay were operating an Illinois Central locomotive traveling from Jackson, Mississippi, to Geismar, Louisiana. The outside " dry bulb" temperature  at the time was 70 degrees Fahrenheit, and the " wet bulb" temperature  was approximately 66 degrees Fahrenheit. Brent's locomotive was not equipped with air conditioning, so he kept the cab's side windows open for ventilation.
¶3. While traveling near LaPlace, Louisiana, Brent felt a hot object hit his shoulder. Clay inspected Brent's shoulder, found a small hole in his shirt, and stated that it appeared Brent had been shot. Clay called the local dispatcher, who instructed an ambulance to meet Brent in LaPlace. Brent was transported to River Parishes Hospital in LaPlace, where doctors treated him and then released him a few hours later.
¶4. It was later determined that Brent had been shot in the right shoulder by a .177 caliber pellet fired from a Crossman Model 760 Pump Master pellet rifle by fourteen-year old Tray Keys. Keys subsequently pleaded guilty to the crime of aggravated battery.
¶5. Brent continued to work for Illinois Central following his injury, but ultimately quit his job on December 14, 1999, when his shoulder pain forced him to stop working. Brent consulted with several doctors concerning his shoulder pain but received differing opinions. Brent eventually underwent
one operation on his shoulder and two operations on his neck, as well as physical therapy to rehabilitate his shoulder. Brent also suffered from depression due to his inability to work, and he received mental health treatment at St. Dominic's Hospital in Jackson.
¶6. Brent filed a complaint against Illinois Central on April 15, 2002, in Hinds County Circuit Court. Brent alleged that Illinois Central negligently failed to provide him with a reasonably safe workplace in violation of FELA. 45 U.S.C.A. § 51 et seq. (1908). Brent also claimed that Illinois Central was negligent per se for violating regulations promulgated under the Locomotive Inspection Act (LIA) and the Federal Railroad Safety Act (FRSA). 49 U.S.C. Section 20701 (1994); 49 U.S.C.A. § 20101 et seq. (1994). Illinois Central countered that Brent's FELA negligence claim was precluded by the LIA, the FRSA, and regulations promulgated there under. Illinois Central also denied violating any safety statutes or regulations.
¶7. In 2011, Brent filed a motion for partial summary judgment. Illinois Central filed a response and cross-motion for summary judgment on June 14, 2011, arguing that Brent's FELA negligence claim failed as a matter of law because it was expressly and implicitly precluded by various federal regulations, and because Brent failed to establish that his injury was foreseeable. The trial court denied both parties' motions, and the case proceeded to trial on July 11, 2011. At the close of Brent's case-in-chief, Illinois Central moved for a directed verdict, arguing again that Brent's claims were precluded by federal regulations, that Brent had failed to prove a violation of any safety regulation, and that Brent had failed to prove that his injury was foreseeable. The court denied this motion.
¶8. After both sides rested, the case went to the jury on two theories of liability. First, the jury was instructed that FELA imposed upon Illinois Central a nondelegable duty to use reasonable care to provide its employees with a reasonably safe workplace. If the jury found that Illinois Central had failed to meet this duty, it was instructed to find in favor of Brent. Next, the jury was instructed that Illinois Central had an absolute duty, not dependent on a showing of negligence, to comply with the LIA's ventilation regulation requiring locomotive cabs to be properly ventilated. 49 CFR § 229.119(d) (1999). The jury was instructed to find in favor of Brent if it found that Illinois Central violated that regulation and that such violation caused Brent's injury.
¶9. The jury returned a general verdict in favor of Brent. On August 12, 2011, the trial court entered a judgment on the verdict in the amount of $500,000. Illinois Central moved for judgment notwithstanding the verdict (JNOV), and the trial court denied the motion. Illinois Central appeals to this Court, raising the following issues: 1) whether Brent's FELA negligence per se claim based on an alleged violation of federal regulations fails as a matter of law because he failed to prove that the locomotive was not properly ventilated; 2) whether Brent's FELA negligence claim is precluded by the FRSA; 3) whether Brent failed to prove that the lack of air conditioning on the locomotive caused his alleged injuries; 4) whether Brent failed to establish that his injuries were reasonably foreseeable; and 5) whether the trial court erred in admitting the testimony of Brent's expert witness, Lawrence Mann.
¶10. FELA creates a tort remedy for railroad workers injured on the job
and serves as the exclusive remedy for a railroad employee injured as a result of his or her employer's negligence. Hogue v. Southern Ry. Co., 390 U.S. 516, 517-518, 88 S.Ct. 1150, 20 L.Ed.2d 73 (1968); Rivera v. Union Pacific R.R. Co., 378 F.3d 502, 507 (5th Cir. 2004). " What constitutes negligence for [FELA] purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state or local laws for other purposes. Federal decisional law formulating and applying the concept governs." Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). Accordingly, this Court is bound to enforce the federal law as Congress has provided and as the federal courts have read it. Illinois Cent. Gulf. R.R. Co. v. Gibbs, 600 So.2d 944, 946 (Miss. 1992). However, FELA cases adjudicated in state courts are subject to state procedural rules. St. Louis Southwestern Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985).
I. Whether Brent's FELA negligence per se claim based on an alleged violation of federal regulations fails as a matter of law because he failed to prove that the locomotive was not properly ventilated.
¶11. Illinois Central claims that the trial court erred in denying its motions for summary judgment and directed verdict on Brent's FELA negligence per se claim because Brent failed to prove that Illinois Central violated a federal safety regulation. Regarding Brent's FELA negligence per se claim, the court instructed the jury as follows:
JURY INSTRUCTION NO. 10: At the time of the occurrence in question, there was in force and effect a Federal Railroad Administration regulation that required the locomotive cab in question be provided with proper ventilation. In this case this duty is absolute and not dependent on a showing of negligence on the part of the Railroad. Therefore, if you find from the preponderance of the evidence in this case that the Plaintiff's injuries for which suit was brought was caused in whole or in part, even in the slightest, as a result of failing to provide a locomotive cab with proper ventilation, then it is your duty as jurors in this case to return a verdict for the Plaintiff, Perry Brent.
The regulation in question requires that locomotive cabs " shall be provided with proper ventilation and with a heating arrangement that maintains a temperature of at least 60 [degrees] Fahrenheit 6 inches above the center of each seat in the cab." 49 C.F.R. § 229.119(d) (1999) (emphasis added). No federal regulation in place at the time of the incident required locomotive cabs to be equipped with air conditioning.
¶12. This Court reviews a trial court's grant or denial of summary judgment de novo. Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 228 (Miss. 2005). This Court conducts a de novo review of motions for directed verdict just as it does with motions for summary judgment. Pace v. Fin. Sec. Life of Miss., 608 So.2d 1135, 1138 (Miss. 1992). Summary judgment is proper " if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c). The evidence must be viewed in the light most favorable to the party opposing the motion. Davis v. Hoss, 869 So.2d 397, 401 (Miss. 2004).
¶13. Questions of sufficiency of evidence for the jury in cases arising under
FELA in state courts are to be determined by federal standards. Brady v. Southern Ry. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 88 L.Ed. 239 (1943) (" [W]hen a state's jury system requires the court to determine the sufficiency of the evidence to support a finding of a federal right to recover, the correctness of its ruling is a federal question." ), abrogated on other grounds by CSX Transp., Inc. v. McBride,
__ U.S. __, 131 S.Ct. 2630, 180 L.Ed.2d 637 (2011); see also Illinois Cent. R.R. Co. v. Gandy, 750 So.2d 527, 532 (Miss. 1999) ( " When . . . a case is brought under FELA in state court, debates over state substantive law are irrelevant because 'the rights and obligations of the parties are governed by the act, 45 U.S.C.A. § § 51 to 60, and by federal principles of common law.'" ). The quantum of evidence required to establish liability in a FELA case is much less than in an ordinary negligence action. Harbin v. Burlington Northern R.R. Co., 921 F.2d 129, 131 (7th Cir. 1990). Thus, a directed verdict for the defendant is appropriate only when there is a " complete absence of probative facts" to support the plaintiff's position. Rivera, 378 F.3d at 505. However, the party opposing judgment as a matter of law must offer more than a mere " scintilla of evidence" supporting his claim. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " This standard is highly favorable to the plaintiff, and recognizes that the FELA is protective of the plaintiff's right to a jury trial." Wooden v. Missouri P. R.R. Co., 862 F.2d 560, 561 (5th Cir. 1989). Accordingly, this Court must affirm the jury's verdict unless Brent failed to present more than a mere scintilla of evidence of a statutory violation, resulting in a complete absence of probative facts supporting his claim.
¶14. In a FELA suit, evidence of an employer's violation of the LIA or regulations promulgated thereunder suffices to prove negligence as a matter of law. Urie, 337 U.S. at 189. The United States Supreme Court has held that the LIA is substantively an amendment to FELA, having the purpose and effect of facilitating employee recovery. Id. The LIA provides, in pertinent part:
A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances --
(1) are in proper condition and safe to operate without unnecessary danger of personal injury;
(2) have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter; and
(3) can withstand every test prescribed by the Secretary under this chapter.
49 U.S.C. § 20701 (1994). A carrier can violate the LIA in one of two ways. First, it may fail to comply with the LIA itself or regulations promulgated thereunder. See Lilly v. Grand Trunk Western R.R. Co., 317 U.S. 481, 485-486, 63 S.Ct. 347, 87 L.Ed. 411 (1943). Here, the plaintiff must prove " only the statutory violation and thus is relieved of the burden of proving negligence[,]" but " still has to prove a causal relation between a violation and the injury for which he is suing." Crane v. Cedar Rapids & Iowa City Ry., 395 U.S. 164, 166, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969). Second, even if a carrier complies with all applicable regulations, it may still be found liable under the LIA if the parts and appurtenances of its locomotives are found to be unsafe. Mosco v. Baltimore & Ohio R.R., 817 F.2d 1088, 1091 (4th Cir. 1987). The term " parts and appurtenances" has been interpreted to include
" [w]hatever in fact is an integral part of a completed locomotive, and all parts or attachments definitely prescribed by lawful order of the [FRA] . . . ." Southern Ry. Co. v. Lunsford, 297 U.S. 398, ...