Sloas v. CSX Transportation, Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL D. SLOAS, 

Plaintiff-Appellee,

v.

CSX TRANSPORTATION,



INCORPORATED, a corporation,

No. 09-1249

Defendant-Appellant.

ASSOCIATION OF AMERICAN

RAILROADS,

Amicus Supporting Appellant.



MICHAEL D. SLOAS, 

Plaintiff-Appellant,

v.

CSX TRANSPORTATION,



INCORPORATED, a corporation,

No. 09-1288

Defendant-Appellee.

ASSOCIATION OF AMERICAN

RAILROADS,

Amicus Supporting Appellee.



2 SLOAS v. CSX TRANSPORTATION

Appeal from the United States District Court

for the Southern District of West Virginia, at Huntington.

Robert C. Chambers, District Judge.

(3:07-CV-00504)

Argued: May 11, 2010

Decided: July 26, 2010

Before TRAXLER, Chief Judge, and NIEMEYER

and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opin-

ion, in which Chief Judge Traxler and Judge Niemeyer joined.

COUNSEL

ARGUED: Andrew E. Tauber, MAYER BROWN, LLP,

Washington, D.C., for Appellant/Cross-Appellee. William A.

Kvas, HUNEGS, LENEAVE & KVAS, PA, Minneapolis,

Minnesota, for Appellee/Cross-Appellant. ON BRIEF:

Melissa Foster Bird, HUDDLESTON BOLEN LLP, Hunting-

ton, West Virginia, for Appellant/Cross-Appellee. W. Michael

Frazier, FRAZIER & OXLEY, L.C., Huntington, West Vir-

ginia, for Appellee/Cross-Appellant. Louis P. Warchot, Dan-

iel Saphire, Washington, D.C., for Association of American

Railroads, Amicus Supporting Appellant/Cross-Appellee.

OPINION

AGEE, Circuit Judge:

Michael Sloas, a sheetmetal worker employed by CSX

SLOAS v. CSX TRANSPORTATION 3

Transportation, Inc. ("CSXT"), injured his back while

attempting to remove a damaged Snyder valve from a loco-

motive’s fuel tank. Subsequently, Sloas applied for and

received a disability annuity under the Railroad Retirement

Act ("RRA"). See 45 U.S.C. § 231 et seq. Sloas also sued

CSXT for negligence under the Federal Employers Liability

Act ("FELA"),1 see 45 U.S.C. § 51 et seq., and obtained a jury

award in his favor.

On appeal, we consider the district court’s denial of (1)

CSXT’s request for a set off against the FELA award based

on its contributions to the Tier II fund used to pay a portion

of Sloas’ RRA disability benefits, and (2) Sloas’ request for

judgment as a matter of law in his favor on the issue of con-

tributory negligence. For the following reasons, we affirm the

judgment of the district court.

I.

We begin with a summary of the evidence presented at

trial, the jury’s apportionment of fault, and the district court’s

disposition of the parties’ post-trial motions.

A.

On January 21, 2005, CSXT employees were attempting to

service and redeploy a locomotive that had been sideswiped.

Sloas was tasked with removing and replacing the locomo-

tive’s damaged Snyder valve, an aluminum valve that threads

into the neck of a locomotive’s fuel tank in order to secure the

fuel cap. Damage to the Snyder valve precluded Sloas from

using the preferred tool for this procedure, a spanner wrench.

Sloas testified that he first attempted to break the valve

1

See Wildman v. Burlington N. R.R. Co., 825 F.2d 1392, 1395 (9th Cir.

1987) ("FELA provides the sole and exclusive remedy for injured employ-

ees of railroad carriers engaged in interstate commerce.").

4 SLOAS v. CSX TRANSPORTATION

loose using a twenty-four inch pipe wrench. When this effort

failed, Sloas further testified that he went to the tool room to

retrieve a sawzall or reciprocating saw and a forty-eight inch

pipe wrench. According to Sloas, no sharp blades were avail-

able for the sawzall and his attempt to use that saw to cut the

Snyder valve merely scratched the valve’s surface. CSXT cast

doubt on Sloas’ testimony, however, by presenting evidence

that Sloas did not consistently mention the lack of sharp saw-

zall blades to his supervisors, as well as by eliciting testimony

from an assisting coworker who did not recall the presence of

a sawzall.

Sloas subsequently used a torch to heat the collar of the

locomotive’s fuel tank in the hope that the collar would

expand and the valve would come loose. Once the valve was

fully heated, Sloas unsuccessfully used a hammer in an

attempt to dislodge it. Sloas and a coworker then tried to

leverage the valve out using the forty-eight inch pipe wrench,

but that effort also failed.

Consequently, Sloas reheated the collar of the fuel tank and

he and his coworker repeated their use of the forty-eight inch

pipe to lift the valve. In total, Sloas and his coworker used the

forty-eight inch pipe wrench to apply pressure to the Snyder

valve for approximately fifteen to twenty-five minutes. Sloas

experienced back pain toward the end of their last attempt.

Believing that he could "walk it off," Joint Appendix ("J.A.")

at 79, Sloas initially did not mention his potential back injury

to his coworker.

Both Sloas and his coworker then took a regularly sched-

uled break. Sloas testified that he later returned to the Snyder

valve, used a hammer to "beat it," "heard a tone," and the

valve "just c[a]me loose." Id. at 80. This version of events

was contradicted by a report generated the night of the inci-

dent by CSXT’s supervisory employees, which stated that

Sloas indicated that he ultimately used a sawzall to remove

the valve. Sloas completed his shift, but was instructed to fill

SLOAS v. CSX TRANSPORTATION 5

out an incident report after he informed his local union repre-

sentative that he had "wrenched his back." Id. at 187. Once

the reporting process was complete, Sloas drove home. By the

time he arrived home he was "in a lot of pain." Id. at 89.

The next day Sloas went to the hospital for an x-ray and

thereafter received extensive treatment from his family physi-

cian and a neurologist, who prescribed prescription pain kill-

ers and steroid injections. This treatment caused Sloas to have

blurred vision and trouble concentrating.

Sloas returned to work at CSXT for two extended periods

from June 2005 to December 2005, and again from May 2006

to June 2007. Due to Sloas’ obvious pain, CSXT’s manage-

ment removed him from his position in June 2007 and

instructed him to obtain medical authorization before return-

ing to work. Sloas’ neurologist never authorized a return to

work at CSXT.

Testimony offered by CSXT employees at trial established

that use of a pipe wrench or a sawzall was an appropriate

method to remove Snyder valves and that the valves often

proved difficult to remove. Several employees explained that

a shortage of sharp sawzall blades at the repair facility was

not uncommon, but that certain supervisors could retrieve

sharp blades from a locked storeroom.

The evidence presented at trial, by Sloas and others, also

established that CSXT had a policy against the use of "brute

force." See, e.g., id. at 113, 222. CSXT’s supervisory employ-

ees explained that this policy generally cautioned employees

against "overexerting" themselves. Id. at 222; see also id. at

259 ("Brute force is just a terminology for straining yourself

. . . . [D]on’t just take it upon yourself to do something where

there’s an easier course to do it. If you can get help, get some-

body else to help you. If you can use a crane or a hoist or

something or a forklift, use something like that."). Several

CSXT witnesses opined that Sloas violated this policy when

6 SLOAS v. CSX TRANSPORTATION

he continued to use the forty-eight inch pipe wrench to lever-

age the Snyder valve, despite a lack of discernable progress

in removing it.

The jury ultimately determined that both CSXT and Sloas

were negligent and that their combined negligence contrib-

uted to Sloas’ back injury. When asked to apportion the per-

centage of Sloas’ injury and the commensurate damages

attributable to each party’s negligence, the jury found CSXT

and Sloas to be equally liable. The jury further determined

that $160,000 in damages would fully compensate Sloas for

his total injury. In accordance with the jury’s apportionment

of fault, the district court entered judgment in Sloas’ favor in

the amount of $80,000.

B.

Post-trial, CSXT filed a motion under Federal Rule of Civil

Procedure 59(e) to alter or amend the judgment.2 Because

Sloas received disability payments under the RRA based on

his inability to return to work, CSXT argued that it was "enti-

tled to a setoff against the jury’s award of damages to [Sloas]

in the amount of $2,107.49, as this number represent[ed] the

present value of the disability benefits attributable to CSXT’s

contributions to the disability benefits received by [Sloas]

during the time period of December 1, 2007 through Decem-

ber 1, 2008." Id. at 351-52. Without a setoff, CSXT argued it

would be forced to "pay[ ] twice for the same loss," resulting

2

CSXT first raised its request for a setoff in its post-trial Rule 59(e)

motion to alter or amend the judgment. Although Rule 59(e) "provides no

standard for when a district court may grant such a motion," we "have rec-

ognized three grounds for amending an earlier judgment: (1) to accommo-

date an intervening change in controlling law; (2) to account for new

evidence not available at trial; or (3) to correct a clear error of law or pre-

vent manifest injustice." Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th

Cir. 1993). The district court properly considered CSXT’s Rule 59(e)

motion under the third category, as CSXT contends the denial of a setoff

would be both legally erroneous and manifestly unjust.

SLOAS v. CSX TRANSPORTATION 7

in Sloas impermissibly receiving "double payment." Id. at

352.

The district court denied CSXT’s request for a setoff. In so

doing, it relied on the Supreme Court’s statement in Eichel v.

N.Y. Central Railroad Co., 375 U.S. 253 (1963) that "‘[t]he

[RRA] is substantially a Social Security Act for employees of

common carriers. . . . The benefits received under such a sys-

tem of social legislation are not directly attributable to the

contributions of the employer, so they cannot be considered

in mitigation of the damages caused by the employer.’" J.A.

at 443 (quoting Eichel, 375 U.S. at 254). The district court

was not persuaded by CSXT’s contention that the holding in

Eichel was abrogated by Congress’ subsequent amendment of

the RRA in 1974. As the court explained,

[i]t has been thirty-five years since this supposed

"paradigm shift" occurred, yet apparently the only

cases granting a setoff under the RRA that [CSXT]

can muster are two state trial court cases, both

decided in the last five months by courts in states

outside the Fourth Circuit. See Fairchild v. CSX

Transp., Inc., Case No. 05-CI-06642 (Jefferson, Ky.,

Cir. Ct., Div.5, Sept. 3, 2008); Radder v. CSX

Transp., Inc., Index No.: I 2005-8536 (N.Y. Sup. Ct.,

County of Erie, Oct. 9, 2008). Moreover, while

[CSXT] has produced the orders of these courts that

grant the setoff in each case, these orders contain

nothing of the courts’ reasoning. [CSXT] also has

produced portions of Congressional reports discuss-

ing the change in the funding of Tier 2 benefits, but

nowhere do they indicate an intention to break with

Eichel. The Court is not prepared to deviate from

Supreme Court precedent on this authority. [CSXT]

is seeking a setoff and it has the burden of demon-

strating to the Court that it is entitled to one. [CSXT]

has not succeeded in this endeavor.

8 SLOAS v. CSX TRANSPORTATION

Id. at 444.

After the jury rendered its verdict, the district court also

ruled on Sloas’ motion for judgment as a matter of law on the

issue of contributory negligence under Federal Rule of Civil

Procedure 50(b). Sloas argued that CSXT failed to identify

"any act or inaction on [his] part that added to the risk of

injury created by [CSXT’s] negligence." Memorandum of

Law in Support of Plaintiff’s Rule 50(b) Motion at 4. Accord-

ingly, Sloas argued that CSXT impermissibly asked "the jury

to infer that [Sloas] was negligent from the happening of the

accident." Id.

The district court denied Sloas’ Rule 50(b) motion, opining

that Sloas’ arguments ignored evidence that he violated

CSXT’s "policy against the use of excessive force." J.A. at

439. The court noted that CSXT’s witnesses testified "that

each employee must know his [or her] own physical limita-

tions and what constitutes excessive force for him or her" and

that Sloas "should have stopped trying to remove the valve

with the wrench when it became apparent that the valve was

not moving." Id. Because Sloas testified that he used the

forty-eight inch wrench for an extended period of time and

"discontinued this method only after injuring his back," the

district court concluded "a reasonable jury could conclude

that [Sloas’] own contributory negligence helped to cause his

injury." Id. at 439-40.

Both CSXT and Sloas filed timely appeals and we have

jurisdiction under 28 U.S.C. § 1291.

II.

On appeal, CSXT reasserts the argument it raised in the

district court, i.e., that the denial of "an offset of the Tier II

disability benefits that were received by [Sloas] and funded in

substantial part by CSXT . . . over-compensated [Sloas] and

forced CSXT to pay twice for the same injury." Opening Brief

SLOAS v. CSX TRANSPORTATION 9

at 6-7. This result, according to CSXT, "is contrary to FELA,

contrary to Supreme Court and Fourth Circuit precedent, and

contrary to good public policy," as it provides "an invitation

to opportunistic litigation." Id at 7.

Specifically, CSXT contends that the district court erred in

holding that the Supreme Court’s decision in Eichel precluded

the grant of an offset. See Stillman v. Norfolk & W. R.R. Co.,

811 F.2d 834, 838 (4th Cir. 1987) (noting that Eichel held

"that defendants in FELA cases are not permitted to inform

the jury that a plaintiff has received benefits from a collateral

source"). The Eichel Court considered the Railroad Retire-

ment Act of 1937. It concluded that the RRA "is substantially

a Social Security Act for employees of common carriers" and

that "[t]he benefits receive under such a system of social leg-

islation are not directly attributable to the contributions of the

employer, so they cannot be considered in mitigation of the

damages caused by the employer." 375 U.S. at 254 (quotation

omitted).

Unlike benefits awarded under the 1937 act, CSXT argues

that the "benefits at issue here, Tier II benefits were first

established" by the Railroad Retirement Act of 1974. Opening

Brief at 7. CSXT asserts that Tier II benefits are "analogous

to a private employer paid pension," id. at 16 (quotation omit-

ted), and "are in substantial part directly attributable to the

contributions of the employer." Id. at 20 (emphasis and quota-

tion omitted). Thus, CSXT contends that Congress’ 1974

alteration of the statutory scheme not only abrogated Eichel’s

holding, but also rendered an offset appropriate.3

3

We reject CSXT’s contention that Eichel was merely an evidentiary

decision that did not address the appropriateness of the offset of a FELA

award based on the receipt of RRA benefits. The Eichel Court’s holding

that the district court properly excluded "evidence of [RRA] disability

payments" was a direct result of the Court’s determination that RRA bene-

fits constituted a "collateral" source. 375 U.S. at 255. As the Fifth Circuit

noted in its exposition of the collateral source rule in Phillips v. Western

10 SLOAS v. CSX TRANSPORTATION

For his part, Sloas argues that the district court separately

erred when it submitted the matter of contributory negligence

to the jury. Sloas asserts that CSXT was not entitled to a con-

tributory negligence instruction, as it failed to provide "evi-

dence that [he] failed to exercise reasonable care." Response

Brief at 14. Indeed, Sloas maintains that "[e]vidence that does

not support" a contributory negligence instruction "includes a

plaintiff assuming the risk of his or her employment, a plain-

tiff violating a general safety rule that does not provide spe-

cific guidance with respect to conduct, attacking a plaintiff’s

credibility or, relying on the mere fact that an accident and

injury occurred." Id. Because, in his view, "[t]he evidence

[CSXT] presented at trial fell [solely] within [these] four pro-

hibited areas," Sloas maintains that "CSXT failed to meet its

burden of proof to create a jury question concerning contribu-

tory negligence." Id.

III.

We first consider CSXT’s argument that it was entitled to

deduct or offset the Tier II contributions it made, as Sloas’

employer, against the jury’s FELA award because Tier II

funds paid a portion of Sloas’ RRA disability benefits. Our

review of the district court’s denial of CSXT’s Rule 59(e)

motion is for an abuse of discretion. See Robinson v. Wix Fil-

tration Corp. LLC, 599 F.3d 403, 407 (4th Cir. 2010). As we

Co. of North America, 953 F.2d 923, 929 (5th Cir. 1992), "[t]he substan-

tive rule of no reduction [based on a collateral source] carries with it an

evidentiary rule requiring the exclusion of evidence of any collateral bene-

fits." See also Green v. Denver & Rio Grande W. R.R. Co., 59 F.3d 1029,

1033 (10th Cir. 1995) (characterizing the Supreme Court’s statement that

"‘it would be highly improper for the [RRA] disability pension payments

to be considered in mitigation of the damages suffered’" as "necessary to

the [Court’s] holding" that evidence of Eichel’s receipt of RRA benefits

involved a substantial likelihood of prejudicial impact and that such evi-

dence was therefore inadmissible at trial (quoting Eichel, 375 U.S. at

254)).

SLOAS v. CSX TRANSPORTATION 11

explained in Wolfe v. Johnson, 565 F.3d 140, 160 (4th Cir.

2009), the district "court necessarily abuses its discretion

when it makes an error of law."

We begin our analysis by examining the nature of the con-

nection CSXT draws between its Tier II contributions and the

jury’s FELA award. CSXT seeks an offset to that award in the

amount of $2,107.49. According to CSXT’s economic expert,

this figure represents the portion of the after-tax Tier II dis-

ability benefits paid to Sloas from December 1, 2007 to

December 1, 2008 which is directly attributable to CSXT’s

Tier II employer contributions. CSXT contends the $2,107.49

should be offset from the jury’s FELA award because this

sum was included in the jury’s award of "$160,000.00 in

damages, an amount that covers [Sloas’] uncontested

$78,755.00 past wage loss calculation."4 J.A. at 351.

Sloas responds that the jury in this case rendered a general

verdict; therefore, it is impossible to know the basis upon

which the jury awarded damages. We agree.5 In this case,

Sloas requested approximately $750,000 in damages and the

district court informed the jury that it could award damages

4

See also Opening Brief at 3 ("[T]he judgment entered against CSXT

in favor of plaintiff compensated plaintiff for the wages he had lost

between December 1, 2007 and December 1, 2008. Significantly, how-

ever, plaintiff also applied for and received disability benefits for that very

same period—benefits that had been funded in substantial part by

CSXT.").

5

In its Response Brief, CSXT notes that Sloas never raised the jury’s

general verdict in his opposition to its motion to alter or amend the judg-

ment. This apparent waiver argument is misplaced. CSXT, not Sloas, is

appealing the district court’s denial of its motion to alter or amend the

judgment. An appellee may defend, and this Court may affirm, the district

court’s judgment on any basis supported by the record. See Blum v. Bacon,

457 U.S. 132, 137 n.5 (1982) ("It is well accepted . . . that . . . an appellee

may rely upon any matter appearing in the record in support of the judg-

ment below."); see also Pitt County v. Hotels.com, L.P., 553 F.3d 308, 311

(4th Cir. 2009) (recognizing that this Court "may affirm on any grounds

apparent from the record" (quotation omitted)).

12 SLOAS v. CSX TRANSPORTATION

for any or all of the following: (1) discomfort, pain, or incon-

venience, (2) past lost wages, and (3) future lost wages. The

total amount the jury ultimately deemed appropriate to fairly

compensate Sloas for his injury was only $160,000, nearly

eighty percent less than Sloas’ requested damages award. We

have no indication upon which of the three categories of dam-

ages the jury based its verdict or in what combination.

On the facts in this case, it is not reasonable for us to

assume the jury accorded Sloas the full measure of his

requested award for past lost wages. See, e.g., Welsh v. Bur-

lington N., Inc., Employee Benefits Plan, 54 F.3d 1331, 1339

(8th Cir. 1995) ("Because the jury . . . rendered a general ver-

dict . . . , we have no way of knowing exactly what portion

of the $500,000 award was for pain and suffering and what

portion was for future lost wages."). The difference between

Sloas’ requested damages and the jury’s final award gives us

"no way of knowing" the basis of that award.6 CSXT, there-

fore, cannot meet its burden of demonstrating that the denial

of an offset would provide Sloas with double payment for his

past lost wages.7

6

It is noteworthy that CSXT has requested similar offsets of FELA

awards in cases filed across the United States. Yet, in this case, CSXT

failed to request a special verdict form that would reveal the bases for the

jury’s calculation of damages and specifically consented to tendering the

general verdict form to the jury. See Dist. Ct. Docket No. 82.

7

CSXT cites a number of cases from other jurisdictions, which it argues

support the proposition that a setoff may be appropriate despite a jury’s

general verdict. Because these cases either offer no rationale for their

holdings or involve a factual stipulation of some kind, we do not find them

persuasive. See, e.g., Stanislawski v. Upper River Servs., Inc., 6 F.3d 537,

541 n.8 (8th Cir. 1993) (recognizing that the plaintiff conceded that "the

jury presumably awarded the full amount of ‘cure’ he requested"), Clark

v. Burlington N., Inc., 726 F.2d 448, 451 (8th Cir. 1984) ("The jury

undoubtedly considered the stipulated lost wages in calculating a damage

award."). Even if we were to assume that a court may divine the basis for

a jury’s general verdict in circumstances where the record renders the

jury’s reasoning relatively clear, the facts of this case fall outside of these

bounds.

SLOAS v. CSX TRANSPORTATION 13

But even if the jury’s verdict did encompass Sloas’

requested award of $78,755 in past lost wages, we conclude

that CSXT cannot demonstrate that the district court abused

its discretion in denying a setoff. The collateral source rule

holds that "compensation from a collateral source should be

disregarded in assessing tort damages."8 United States v.

Price, 288 F.2d 448, 449-50 (4th Cir. 1961). That a benefit

"comes from the defendant tortfeasor does not itself preclude

the possibility that it is from a collateral source."9 Id. at 450.

"The plaintiff may receive benefits from the defendant him-

self which, because of their nature, are not considered double

compensation for the same injury but [are] deemed collateral."10

Id.

8

Assuming Congress’ alteration of the RRA in 1974 abrogated Eichel’s

precise holding, we remain bound by the Supreme Court’s determination

that the collateral source rule provides the appropriate framework for

determining whether RRA benefits should be considered in calculating a

FELA award. See Eichel, 375 U.S. at 254-56; see also Raycraft v. Duluth,

Missabe & Iron Range Ry. Co., 472 F.2d 27, 29 (8th Cir. 1973) ("[T]he

Supreme Court, in the case of Eichel v. New York Central R.R., 375 U.S.

253 (1963), held that the trial court had properly excluded evidence of

compensation benefits for the purpose of impeachment, on the authority

of the collateral source rule."). We, therefore, do not consider CSXT’s

argument that the underlying purposes of the collateral source rule are not

served by its application to this case.

9

See also Phillips v. W. Co. of N. Am., 953 F.2d 923, 931 (5th Cir.

1992) ("[T]his and other circuits have not narrowed the focus to the single

question of the source of the benefits except in cases involving the govern-

ment."); Clark v. Burlington N., Inc., 726 F.2d 448, 450 (8th Cir. 1984)

("A benefit may be exempt from setoff under the collateral source rule

even though the employer is the sole source of the fund.").

10

CSXT cites our opinion in Szedlock v. Tenet, 61 Fed. Appx. 88, 94

(4th Cir. 2003) (unpublished), for the proposition that a benefit must be

"received from a source distinct from the employer" in order to be deemed

"collateral." CSXT’s reliance on mere labels, however, is mistaken. Our

opinion in Fariss v. Lynchburg Foundry, on which Szedlock relies, dealt

with a "payment made entirely by the employer directly to the employee,"

769 F.2d 958, 966 n.10 (4th Cir. 1985) (emphasis added), and held that

payment not to be a collateral benefit. Unlike Fariss’ benefits which came

straight from an "employer-funded company retirement plan," id. at 963,

14 SLOAS v. CSX TRANSPORTATION

Thus, whether a given benefit is derived from a collateral

source "depend[s] . . . upon the exact nature of the compensa-

tion received." Id. at 449. If the tortfeasor provides a benefit

to the plaintiff "specifically to compensate him for his injury,"

the benefit does not constitute a collateral source. Id.; see

Clark v. Burlington N., Inc., 726 F.2d 448, 450 (8th Cir.

1984) (noting that the collateral source rule does not apply to

"payments which the employer has undertaken voluntarily to

indemnify itself against possible liabilities under the FELA").

Such payments may, therefore, be "taken into account in fix-

ing tort damages," as "the tortfeasor need not pay twice for

the same damage." Price, 288 F.2d at 449.

But if the tortfeasor does not provide the benefit to the

plaintiff as compensation for his or her injury, the benefit is

from a collateral source and "should not be offset against the

sum awarded from the tort nor considered in determining that

award." Id.; see also Phillips v. The W. Co. of N. Am., 953

F.2d 923, 932 (5th Cir. 1992) (explaining that "the collateral

source rule applies," for example, "to fringe benefits or

deferred compensation"). We accordingly consider a benefit

to be from a collateral source unless it results from "payments

made by the employer in order to indemnify itself against lia-

bility." Phillips, 953 F.2d at 932 (quotation omitted).

To analyze the nature of CSXT’s Tier II contributions, we

must first explore the current structure of the RRA’s compen-

sation scheme.11 The RRA of 1974 created a two-tiered bene-

Sloas’ Tier II disability benefits under the RRA of 1974 were funded,

much like Social Security benefits, by a commingled pool of employer and

payroll taxes. We never suggested in Fariss that Social Security benefits

could be anything but collateral; RRA disability benefits are likewise inap-

propriate for an offset. Therefore, even under the Fariss rationale, CSXT’s

Tier II contributions would be deemed collateral and would not be set off

from the verdict.

11

Under the RRA of 1937, individuals "who worked for both railroad

and nonrailroad employers and who qualified for railroad retirement bene-

SLOAS v. CSX TRANSPORTATION 15

fit system in which Tier I corresponds to the benefits "an

employee would expect to receive [under] the Social Security

Act" and Tier II operates "like a private pension" tied to an

employee’s "earnings and career service."12 Hisquierdo v.

Hisquierdo, 439 U.S. 572, 574-75 (1979). "‘[L]ike Social

Security, and unlike most private pension plans,’" RRA bene-

fits are "statutory rather than contractual" and thus may be

eliminated by Congress "‘at any time.’" Vollmar v. CSX

Transp., Inc., 898 F.2d 413, 416-17 (4th Cir. 1990) (quoting

Hisquierdo, 439 U.S. at 575).

Congress entrusted the administration of the railroad retire-

ment system to "the Railroad Retirement Board, a federal

agency, which determines an employee’s eligibility for bene-

fits and the amount of benefits to be paid." Id. These benefits

are "funded under the Railroad Retirement Tax Act," which

establishes "employer taxes and payroll taxes . . . employers

are required to withhold from employee paychecks." Id. at

414. "Like any scheme of social insurance, the amount of

taxes paid on behalf of a particular employee does not neces-

sarily correlate with the amount of benefits to which the

employee may become entitled." Id. at 416. In fact, not all

employees "become eligible for benefits." Id. But "[n]either

the employee nor the carrier is entitled to a refund of . . . taxes

paid on behalf of an employee who never qualifies for bene-

fits." Id.

fits and social security benefits . . . received retirement benefits under both

systems," U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 168 (1980), in

an amount greater than that "they would have received had they not split

their employment." Id. at 168 n.1. The payment of this "windfall benefit[ ]

threatened the railroad retirement system with bankruptcy." Id. at 169.

Congress accordingly passed the RRA of 1974 to eliminate the windfall

benefit and place the federal railroad retirement "system on a ‘sound

financial basis.’" Id.

12

Tier I benefits are taxed in the same manner as Social Security bene-

fits, whereas Tier II benefits are taxed in the same manner as qualified pri-

vate pensions. See Ernzen v. United States, 922 F.2d 1433, 1434 (9th Cir.

1991).

16 SLOAS v. CSX TRANSPORTATION

Under the RRA, employees may receive "payments for dis-

ability as well as for wages lost due to retirement." Alessi v.

Raybestos-Manhattan, Inc., 451 U.S. 504, 519 (1981). Eligi-

ble railroad employees thus receive what is "essentially a dis-

ability pension." Welsh, 54 F.3d at 1340. The Railroad

Retirement Board’s "disability regulations are substantively

identical to" those under the Social Security Act. Fountain v.

R.R. Retirement Bd., 88 F.3d 528, 530 (8th Cir. 1996). An

employee need not be injured on the job, or be currently

employed by a railroad to receive disability benefits under the

act.13

The foregoing summary of the nature of the RRA benefit

scheme makes clear that CSXT’s employer contributions

were not "undertaken voluntarily to indemnify itself against

possible liabilities under the FELA." Clark, 726 F.2d at 450.

To the contrary, CSXT merely paid a mandatory tax instituted

by Congress to further "a federally funded and administered

social welfare program." Vollmar, 898 F.2d at 417. As the

Supreme Court explained in the context of employer contribu-

tions to a state unemployment compensation fund,

[t]rue, these taxes were paid by employers, and thus

to some extent [CSXT] helped to create the fund.

However, the payments to [Sloas] were not made to

discharge any liability or obligation of [CSXT], but

to carry out a policy of social betterment for the ben-

efit of the entire state. We think these facts plainly

show the benefits to be collateral. It is thus apparent

from what we have already said that failure to take

them into account in ordering [relief under FELA]

13

See 45 U.S.C. § 231a(a)(iv) & (v) (providing that both (1) "individuals

who have a current connection with the railroad industry, whose perma-

nent physical or mental condition is such as to be disabling for work in

their regular occupation," and (2) "individuals whose permanent physical

or mental condition is such that they are unable to engage in any regular

employment" are eligible for disability benefits).

SLOAS v. CSX TRANSPORTATION 17

does not make [Sloas] more than "whole" as that

phrase has been understood and applied.

NLRB v. Gullett Gin Co., 340 U.S. 361, 364-65 (1951) (inter-

nal citations omitted).

We accordingly add to the body of other federal appellate

decisions that have considered similar benefits and hold that

RRA benefits, including those under Tier II, are a collateral

source that may not be considered in determining a FELA

award. See Price, 288 F.2d at 451 ("Where railroad employ-

ees have been disabled because of negligence and have sued

their employers under [FELA], the courts have uniformly held

that the retirement benefits could not be considered in calcu-

lating damages."); see, e.g., Green v. Denver & Rio Grande

W. R.R. Co., 59 F.3d 1029, 1033 (10th Cir. 1995) ("We hold

. . . that plaintiff’s RRA disability annuity pension was a col-

lateral source and not admissible to offset any damages award

he might have received."); Folkestad v. Burlington N., Inc.,

813 F.2d 1377, 1380 (9th Cir. 1987) ("Payments under the

Railroad Retirement Act, a social program funded by collec-

tions from the employer and employee . . . [are] designed to

facilitate the retirement of elderly railroad employees, [and

are thus] deemed to come from a collateral source.").

IV.

We now turn to Sloas’ contention that the district court

erred in submitting the issue of contributory negligence to the

jury. Our review of the district court’s denial of Sloas’ Rule

50(b) motion is de novo. See King v. McMillan, 594 F.3d 301,

312 (4th Cir. 2010). On appeal, we view the evidence in the

light most favorable to the prevailing party and will affirm the

denial of a Rule 50(b) motion unless we conclude that the jury

lacked "a legally sufficient evidentiary basis" to find in that

party’s favor. See id. (quotation omitted).

Contributory negligence is an affirmative defense on which

CSXT, as the defendant, has the burden of proof. See Wise v.

18 SLOAS v. CSX TRANSPORTATION

Union Pac. R.R. Co., 815 F.2d 55, 57 (8th Cir. 1987); Dixon

v. Penn Cent. Co., 481 F.2d 833, 837 (6th Cir. 1973). The

burden of proof in this regard is quite low, however, as the

"defendant is entitled to a contributory negligence instruction

if there is any evidence to support that theory." Wilson v. Bur-

lington N., Inc., 670 F.2d 780, 782 (8th Cir. 1982). Indeed, the

Supreme Court has explained that

[d]amages and contributory negligence are so

blended and interwoven, and the conduct of the

plaintiff at the time of the accident is so important a

matter in the assessment of damages, that the

instances would be rare in which it would be proper

to submit to a jury the question of damages without

also permitting them to consider the conduct of the

plaintiff at the time of the injury.

Norfolk S. R.R. Co. v. Ferebee, 238 U.S. 269, 273 (1915).

In this case, our review of the record in the light most

favorable to CSXT demonstrates that the district court did not

err in submitting the matter of contributory negligence to the

jury. CSXT presented evidence at trial that tended to show

that Sloas, for example, did not initially attempt to use the

sawzall to remove the Snyder valve, or that his efforts to

secure sharpened blades were nonexistent or quite minimal.

Crediting either version of events would have provided the

jury with a sufficient evidentiary basis to find contributory

negligence. See Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500,

507 (1957) (stating that in determining whether to submit the

question of negligence to the jury courts are "narrowly limited

to the single inquiry whether, with reason, the conclusion may

be drawn that negligence . . . played any part at all in the

injury or death").

The jury was entitled to reach the commonsense conclusion

that a mechanical means of removing the Snyder valve, such

as the use of the sawzall, entailed less risk of physical injury

SLOAS v. CSX TRANSPORTATION 19

than the repeated manual use of a pipe wrench. A finding of

contributory negligence could reasonably stem from the jury’s

conclusion that Sloas either failed to initially use the sawzall

to remove the valve, or to make a sufficient effort to locate

the appropriate blades for the saw. See Tiller v. Atl. Coast

Line R.R. Co., 318 U.S. 54, 68 (1943) ("‘Where the facts are

in dispute, and the evidence in relation to them is that from

which fairminded men may draw different inferences,’ the

case should go to the jury (quoting Washington & G.R. Co.

v. McDade, 135 U.S. 554, 572 (1890))).

Contrary to Sloas’ contention, the evidence supporting the

jury’s conclusion that he was contributorily negligent does not

implicate the doctrine of assumption of the risk. It is well

established that "[a] plaintiff cannot be held to assume the risk

in a FELA case." Brown v. Cedar Rapids & Iowa City Ry.

Co., 650 F.2d 159, 165 (8th Cir. 1981); see 45 U.S.C. § 54.

The "voluntary, knowledgeable acceptance of a dangerous

condition that is necessary" for an individual "to perform his

duties constitutes an assumption of risk." Taylor v. Burlington

N. R.R. Co., 787 F.2d 1309, 1316 (9th Cir. 1986). In contrast,

contributory negligence "is a careless act or omission on the

plaintiff’s part tending to add new dangers" to preexisting

conditions. Id.

Evidence that Sloas failed to appropriately utilize the saf-

est, i.e., mechanical, means to remove the Snyder valve

clearly constitutes evidence of contributory negligence, as it

does not pertain to "risks inherent in [Sloas’] job." Id. at 1317.

Instead, this evidence went to a careless act or omission on

Sloas’ part that added new risks to that already inherent in his

task. See Jenkins v. Union Pac. R.R. Co., 22 F.3d 206, 211

(9th Cir. 1994) ("We continue to adhere to the traditional rule

that when an employee carries out his supervisor’s general

order in an unsafe manner, he is responsible under FELA for

his own contributory negligence.").14

14

We also reject Sloas’ assertion that the jury’s conclusion that he was

contributorily negligent rested on the mere fact that he was injured. See

20 SLOAS v. CSX TRANSPORTATION

V.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 438 (4th Cir.

1999) ("The mere fact that an accident occurs or that injury is sustained

does not prove negligence."). CSXT presented evidence that Sloas failed

to utilize the safest means of removing the Snyder valve, i.e., that the ini-

tial use of a sharpened sawzall blade would have prevented his injury. The

jury was entitled to credit this evidence in concluding that Sloas was con-

tributorily negligent.