Petition for Writ of Certiorari — Norfolk & Western Railway Co. v. Luther

Supreme Court, U.&8.

FILED

981068 JAN 2 - 19%

No. 95> OFFITE oF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

NORFOLK AND WESTERN RAILWAY COMPANY,

Petitioner,

Vv.

JOHN D. LUTHER,

Respondent.

Petition for a Writ of Certiorari to the

Appellate Court of Illinois,

Fifth Judicial Circuit

PETITION FOR A WRIT OF CERTIORARI

THOMAS W. ALVEY, JR. CARTER G. PHILLIPS *

KARL D. DEXHEIMER JENNIFER CHRISTOFFERSON

WILLIAM J. NIEHOFF SIDLEY & AUSTIN

THOMPSON & MITCHELL 1722 Eye Street, N.W.

525 West Main Street Washington, D.C. 20006

P.O. Box 750 (202) 736-8000

Belleville, IL 62222

(618) 277-4700

Counsel for Petitioner

January 2, 1996 * Counsel of Record

WILSON - Epes PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

pla a PARRY il i etoecat he PENS Bb 2 PRS

QUESTION PRESENTED

Whether the Illinois Court of Appeals erred when it

removed petitioner’s claim of contributory negligence un-

der the FELA from the jury’s consideration after deter-

mining that respondent had not “added new dangers” to

existing work conditions, rather than permitting the jury

to scrutinize respondent’s conduct under an “ordinary

reasonableness” standard.

iain |

ii

LIST OF PARTIES AND RULE 29.6 STATEMENT

The only parties to this proceeding are the petitioner

Norfolk and Western Railway Company and the respond-

ent John D. Luther.

Pursuant to Rule 29.6 of the Rules of this Court, peti-

tioner Norfolk and Western Railway Company states that

it is a subsidiary of the Norfolk Southern Company.

TABLE OF CONTENTS

Page

QUESTION PRESENTED

LIST OF PARTIES AND RULE 29.6 STATEMENT ii

TABLE OF AUTHORITIES iv

OPINIONS BELOW I

JURISDICTION 2

STATUTES INVOLVED 2

STATEMENT OF THE CASE 3

REASONS FOR GRANTING THE PETITION 7

CONCLUSION 16

(ili)

iv

TABLE OF AUTHORITIES

CASES Page

Birchem Vv. Burlington N.R.R., 812 F.2d 1047 (8th

Cir. 1987). oe

Braxton Vv. United States, 500 U.S. 344 (1991) . a 9

Brown Vv. OMI Corp., 863 F. Supp. 169 (S.D.N.Y.

| TS SRR eo Ea ed Ss owe 14

Bunting Vv. Sun Co., 643 A. 2d 1085 (Pa. Super. Ct.

| EE Nes OM aE RNa ee 14

Dice V. Akron, Canton & ‘Youngstown R.R., 342

he Gs SR aR ante sei he ees rae 9

Drury Vv. Missouri Pac. R.R., 905 S.W.2d 138 (Mo.

BR I dcinvcctisccnscsetcaccumichppaieadsaioilamiinetioel 8

Eversole Vv. Consolidated Rail Corp., 551 N.E.2d

On Cie, Sa ds Ge kee ees 8,12

Fashauer V. New Jersey Transit Rail Operations,

Inc., 57 F.8d 1269 (8d Cir. 1995) .............8, 9, 11, 18, 14

Gavagan V. United States, 955 F.2d 1016 (5th Cir.

MUTI sscsinkoivncossd Uncle dines Lea hettaanmngntaiadecsedeteudaaobnaciatgitaneimnmisaas 14

Gish V. CSX Transp., Inc., 890 F.2d 989 (7th Cir.

ERR Meee» POUR ee ARR cee Pan ae Bree ees 6, 7, 11

Groves V. Illinois Cent. Gulf R.R., 563 So. 2d 496

Ae eres ee a eee 12

Harrison V. Taylor, 768 P.2d 1321 (Idaho 1989)... 12

Higgins v. CSX Transp., Inc., 455 S.E.2d 129 (Ga.

I “UI aaa ee 8,9

Hilen Vv. Hays, 673 S.W.2d 713 (Ky. 1984) —........... 12

Jenkins Vv. Union Pac. R.R., 22 F.3d 206 (9th Cir.

| Renee Ce Nenana whee MIA Ce Ie INE SEP EE 12

Kalanick v. Burlington N. R. R., 788 P.2d 901 (Mont.

1990) ..... eee FS ee LN Nee A wees ANS NRE 8

Karvelis v. Constellation Lines S.A., 806 F.2d 49

(2d Cir. 1986), cert. denied, 481 U.S. 1015

(1987) . cnnaetacadaisaadeimeah ena aeseaidctaaaa 14 )

Kendrick v. Illinois Cent. Gulf R.R., 669 F.2d 341 '

ne on kee

Kernan V. American Dredging Co., 355 U.S. 426

PINE perk cee ee 14

Monroe Vv. Southern Ry., 436 S.E.2d 568 (Ga. Ct.

ME EE daisithiees suchteaedeths anateaintaiginae me neaaaeaeeas 10

Vv

TABLE OF AUTHORITIES—Continued

Page

Narusiewicz Vv. Burlington N.R.R., 391 N.W.2d 895

i ee Oe. , ey eT 8

Norfolk & W. Ry. Vv. Hodges, 448 S.E.2d 592 (Va.

| LE OT ie. SRO IRAE TINY CMR 8

Novack Inv. Co. Vv. Setser, 454 US. 1064 (1981)... 8

Page Vv. St. Louis Southwestern Ry., 349 F.2d 820

Sees Gm TO ©, | aiiicci ckcctsananisnunninanienetene 8, 12, 13, 14

Pruett v. Norfolk & W. Ry., 632 N.E.2d 652 (Il.

Ct. App. 1904) ........... sateccchskasarisaddaadaadaialia atadats hacen oat 9

Rivera Vv. Farrell Lines, Inc., 474 F.2d 255 (2d

Cir.), cert. denied, 414 U.S. 822 (19738) ............... 9

Rogers V. Missouri Pac. R.R., 352 U.S. 500 (1957). 9

Seaboard Air Line Ry. Vv. Horton, 233 U.S. 492

IND 5. <- nsiisnansrionincadosodesnducueaindectebanidiieiaiaenaaa amma 10

St. Louis Southwestern Ry. Vv. Dickerson, 470 U.S.

ey YE 8

Taylor V. Burlington N.R.R., 787 F.2d 1309 (9th

| RS a ine 7, 13, 133

Tersiner V. Union Pac. R.R., No. 90- 3361, 1991 WL

226687 (10th Cir. Oct. 30, 19981) ........................... 7,

Tiller v. Atlantic Coast Line R.R., 318 U.S.

(1943) .. TRS EM sme Misc ir Pen SE SE 10, 4 13, 14

Tipton V. CSX Transp., ‘Inc., No. 91-3333, 1992 WL

43640 (6th Cir. Mar. 9, 1992) 20......ccccccscvicdrediences. 8,9, 12

Uhrhan vy. Union Pac. R.R., 617 N.E.2d 1182 (lil.

|| RARER RS Sarat ee neteee. a Le 6,8

STATUTES

Federal Employers Liability Act (“FELA”),

45 U S.C. § SI ............... PORN JET PRUNE EOP T UT On os 2,4

Se Fo | EAI ROM MeAR APR Drape 0 08! 2

FRR aS SSR re mr rN RTS 2,5,13

P GS Fe) | See mme een eae Me fin FeI 3, 5,14

Uniform Comparative Fault Act § 1(b), 12 U.L.A.,

Civ. Proc. & Remedial Laws (Supp. 1995) _...... 12

OTHER AUTHORITIES

Mary J. Davis, Individual and Institutional Respon-

sibility: A Vision for Comparative Fault in

Products Liability, 29 Vill. L. Rev. 281 (1994) .... 10

re

vi

TABLE OF AUTHORITIES—Continued

Page

David R. Owen & J. Marks Moore, Comparative

Negligence in Maritime Personal Injury Cases,

43 La. L. Rev. 941 (1983) 12

Jerry J. Phillips, An Evaluation of the Federal Em-

ployers’ Liability Act, 25 San Diego L. Rev. 49

(1988) ......... setucantnandaidieabannaaindaiiiatal alata

15

In THE

Supreme Court of the United States

OcTOBER TERM, 1995

No. 95-

NORFOLK AND WESTERN RAILWAY COMPANY,

Petitioner,

We

JOHN D. LUTHER,

Respondent.

Petition for a Writ of Certiorari to the

Appellate Court of Illinois,

Fifth Judicial Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Norfolk and Western Railway Company re-

spectfully requests that a writ of certiorari issue to review

the judgment and decision of the Appellate Court of IIli-

nois, Fifth Judicial District.

OPINIONS BELOW

The opinion of the Appellate Court of Illinois, Fifth

District (App. at Ia-20a) is reported at 649 N.E.2d 1000.

The order of the Illinois Supreme Court (App. at 21a)

denying petitioner's petition for leave to appeal is not re-

ported. The judgment of the Circuit Court, Third Judicial

Circuit, Madison County, Illinois against petitioner en-

tered upon a jury’s verdict (App. at 22a-23a) is not re-

ported. The order of the Circuit Court, Third Judicial

2

Circuit, Madison County, Illinois (App. at 24a), denying

petitioner’s post-trial motions, is not reported.

JURISDICTION

The decision of the Appellate Court of Illinois, Fifth

Judicial Circuit, was filed on May 11, 1995. App. at

la-20a. The Illincis Supreme Court entered its Order

Denying Petition for Leave to Appeal on October 4, 1995.

App. at 2la. The jurisdiction of this Court is invoked

sursuant to 28 U.S.C. § 1257(a).

STATUTES INVOLVED

Section 1 of the Federal Employers Liability Act

(“FELA”), 45 U.S.C. § 51 et seq., provides in pertinent

part:

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 .. . resulting in whole or in part from

the negligence of any of the officers, agents, or em-

ployees of such carrier, or by reason of any defect or

insufficiency, due to its negligence, in its cars, en-

gines, appliances, machinery, track, roadbed, works,

boats, wharves, or other equipment.

45 U.S.C. § 51; see also 45 U.S.C. § 52.

Section 3 of the FELA, 45 U.S.C. § 53, provides in

pertinent part:

In all actions brought [on and after April 22, 1908)

against any such common carrier by railroad under

or by virtue of any of the provisions of this act .. .

to recover damages for personal injuries to an em-

ployee, . . . the fact that the employee may have been

guilty of contributory negligence shall not bar a re-

covery, but the damages shall be diminished by the

jury in proportion to the amount of negligence at-

tributable to such employee.

3

Section 4 of the FELA, 45 U.S.C. § 54, provides in

pertinent part:

In any action brought against any common carrier

under or by virtue of any of the provisions of this

Act . . . to recover damages for injuries ‘o, or the

death of, any of its employees, such employee shall

not be held to have assumed the risks of his employ-

ment in any case where such injury or death resulted

in whole or in part from the negligence of any of the

officers, agents, or employees of such carrier.

STATEMENT OF THE CASE

1. Respondent John D. Luther, an employee of peti-

tioner Norfolk and Western Railway Company, was a

track laborer for petitioner from 1979 until 1988. On

August 12, 1988, he was assigned to a crew to replace

defective and damaged rails on a main line in Jennings,

Missouri. Although three to five laborers are normally

assigned to such a crew, Luther was the only laborer

assigned to cut rail on the morning of August 12.

He and the two other members of the crew boarded a

high rail truck. A high rail truck can be operated on road-

ways and railroad tracks, and has a boom lifting device

to pick up and move rails. Before leaving for the rail

line, the crew loaded the truck bed with tools necessary

to remove and replace rail, including bolts, spikes, and

20 pairs of angle bars. In addition, the truck bed con-

tained a gasoline-powered rail saw, weighing approxi-

mately 40 to 50 pounds and equipped with a cutting

wheel. In most situations the rail saw can readily be

handled by one man. The truck bed also contained a

storage box for the saw located at the front of the truck

bed near the cab.

To remove a segment of defective rail, the rail is cut

into a 10-foot-long section using the rail saw. The rail

is then cut into three pieces, each piece weighing approxi-

mately 110 to 132 pounds. Those pieces are then loaded

4

into the truck bed using the boom lifting device. On the

morning of the incident giving rise to respondent’s claims,

the crew spent approximately 1 to 142 hours cutting and

replacing rail at each defective rail site.

While preparing to move to a new job site, respondent

and another member of the crew loaded the rail saw into

the truck bed. Respondent climbed onto the back of the

truck bed, and the other crew member handed him the

saw from the ground below. The truck bed now con-

tained between 8 and 10 pieces of defective rail, tools,

angle bars and other debris. Although no explicit safety

policy requires the crew to clean up the truck bed, all

three members of the crew, including respondent, testified

that it is the laborers’ responsibility to keep the truck bed

clean and orderly. Laborers certainly do not need explicit

directives in order to move items for the purpose of

straightening up the contents in the truck bed. Before

grabbing the saw to put it away, respondent had not

cleared a path to the storage box or cleared a spot on

which to lay the saw. As he held the saw, respondent

searched for a suitable place to put the saw down. He did

not want to place the saw on the other tools and debris

because he was concerned that its blades might chip. Re-

spondent finally observed a vacant spot at the front of

the cab near the storage box; however, there was no clear

path to reach it. Respondent navigated his way to within

about two feet of the clearing and reached out to place

the saw down. As he reached out, and started putting

the saw down he felt a pain in his back and fell to his

knees. He did not slip or trip in any way. Respondent

was taken to the hospital where he was diagnosed with a

pre-existing degenerative disk disease in his back, which

apparently was aggravated by the incident with the saw.

2. Respondent filed suit in the Circuit Court of Madi-

son County, Illinois under Section 1 of the FELA, 45

U.S.C. § 51, alleging that his back injury resulted from

petitioner’s negligence. The FELA creates a cause of ac-

tion for injuries suffered by a railroad employee as a

5

result of the railroad’s negligence. As it relates to the

case in this Court, respondent’s cause of action was prem-

ised on ordinary negligence under the FELA. In its an-

Swer, petitioner raised the affirmative defense of con-

tributory negligence under Section 3 of the FELA, 45

U.S.C. § 53. Section 3 provides that “the fact that the

employee may have been guilty of contributory negligence

shall not bar a recovery, but the damages shall be dimin-

ished by the jury in proportion to the amount of negli-

gence attributable to such employee.” 45 U.S.C. § 53.

At the close of all the evidence, respondent filed a mo-

tion for a directed verdict regarding the defense of con-

tributory negligence, arguing that the evidence was in-

sufficient to create a jury question on that issue. The

motion also claimed that petitioner’s evidence only proved

assumption of risk, a defense barred under Section 4 of

the FELA. See 45 U.S.C. § 54.

In fact, during trial, petitioner had proved that re-

spondent was aware of, created, or contributed to the

creation of the conditions which resulted in his injury.

Furthermore, the evidence showed that respondent could

have avoided the dangerous condition by taking a few

simple and reasonable precautions before accepting the

saw from his fellow crew member. The trial court, how-

ever, granted respondent’s motion and denied petitioner’s

motion to reconsider on the issue of contributory negli-

gence. Thus, contributory negligence was withheld from

the jury’s consideration.

On November 3, 1992, the jury returned a verdict and

awarded respondent $1,850,000.00, reduced by 15% for

respondent’s failure to mitigate damages. Judgment was

entered against petitioner on November 5, 1992. On July

8, 1993, the Third Judicial Circuit denied petitioner’s

post-trial motions.

3. On May 11, 1995, the Fifth Judicial District of the

Appellate Court of Illinois affirmed, by a vote of 2-1, both

the directed verdict on the issue of petitioner’s contribu-

nn

6

tory negligence and the jury verdict. In reviewing the

directed verdict on the contributory negligence defense,

the Appellate Court, quoting the Illinois Supreme Court’s

decision in Uhrhan v. Union Pac. R.R., 617 N.E.2d 1182,

1187 (Ill. 1993), defined contributory negligence as “a

careless act or omission on the plaintiff's part tending to

add new dangers to conditions that the employer negli-

gently created or permitted to exist.” App. at 6a (em-

phasis added by the Appellate Court).

Although the court explicitly recognized that a defend-

ant “is entitled to a contributory negligence instruction if

there is any evidence to support that theory,” Gish v.

CSX Transp. Co., 890 F.2d 989, 992 (7th Cir. 1989);

Uhrhan-v- Union Pac. R.R., 617 N.E.2d 1182, 1187 (Il.

1993), the Appellate Court held that there was no evi-

dence that respondent’s acts or omissions added additional

dangers to the existing situation. App. at 8a. The court

reasoned that because “there were no safety rules requir-

ing laborers to clean the truck bed,” the respondent could

not have avoided the hazardous condition, and, therefore,

did not add a new danger. /d.

The dissenting judge disagreed with the majority pri-

marily because the court subjected the defendant and

plaintiff to two different standards of care. The dissent

was particularly concerned that the disparate standards

provided the court with a way to “remove the issue of

contributory negligence from consideration by a jury.”

App. at 17a-18a. The dissent also noted that the plain-

tiff was clearly negligent; indeed, but for the plaintiff's

careless acts the accident never would have occurred.

App. at 16a-17a.

The Illinois Supreme Court denied review on October

4, 1995. App. at 21a.

7

REASONS FOR GRANTING THE PETITION

This case is the most recent in a recurring set of

decisions handed down by federal and state courts, which

are sharply divided as to the proper legal standard for

contributory negligence under the FELA. Specifically,

the issue in this case is whether the Illinois state court

erred when it removed the defendant’s claim of contribu-

tory negligence from the jury’s consideration after deter-

mining that the plaintiff had not “added new dangers” to

existing work conditions, rather than permitting the jury

to scrutinize the plaintiff's conduct for comparative negli-

gence purposes under the traditional “reasonably prudent”

person standard for negligence. See App. at 8a. The de-

cision below singularly illustrates the fundamental issue

that is at the heart of the split among the lower courts,

and the concrete impact that this dispute is having on the

jury’s role in assessing employer liability under the FELA.

This case therefore presents particularly compelling rea-

sons for granting certiorari.

1. The federal circuit courts are hopelessly split on the

precise issue which is raised in this case. In the Seventh,

Eighth, Ninth, and Tenth Circuits, a contributory negli-

gence claim under the FELA is submitted to the jury

Only after the court finds “a careless act or omission on

the plaintiff's part tending to add new dangers to condi-

tions that the employer negligently created or permitted

to exist.” Taylor v. Burlington N.R.R., 787 F.2d 1309.

1316 (9th Cir. 1986) (emphasis added): sce also Ter-

siner V. Union Pac. R.R., No. 90-3361, 1991 WL 225897

(10th Cir. Oct. 30, 1991) (unpublished decision): Gish

v. CSX Transp., Inc., 890 F.2d 989, 991 (7th Cir.

1989); Birchem v. Burlington N.R.R.. 812 F.2d 1047.

1049 (8th Cir. 1987). In the Third Circuit the contribu-

tory negligence instruction employs the “ordinary reason-

ableness” standard in evaluating the plaintiff’s conduct.

But, a contributory negligence claim is not submitted to

the jury if the court determines that the employer directed

the employee to perform the injury causing task. Fas-

es

8

hauer Vv. New Jersey Transit Rail Operations, Inc., 57

F.3d 1269, 1280 (3d Cir. 1995). The Fifth and Sixth

Circuits permit the jury to assess all of the plaintiff's

conduct under a “reasonably prudent person” standard.

Tipton v. CSX Transp., Inc., No. 91-3333, 1992 WL

43540 (6th Cir. Mar. 9, 1992) (unpublished decision) ;

Kendrick v. Illinois Cent. Gulf R.R., 669 F.2d 341, 343-

44 &n.1 (Sth Cir. 1982); Page v. St. Louis Southwestern

Ry., 349 F.2d 820, 823-24 (Sth Cir. 1965).

Because federal substantive law applies under the

FELA, St. Louis Southwestern Ry. v. Dickerson, 470

U.S. 409, 411 (1985), state courts also adopt either the

“additional new dangers” standard or an “ordinary reason-

ableness” standard. Compare Higgins v. CSX Transp.,

Inc., 455 S.E.2d 129, 131 (Ga. Ct. App. 1995) (adopt-

ing “add[itional] new dangers” standard); Norfolk & W.

Ry. v. Hodges, 448 S.E.2d 592, 596 (Va. 1994) (same);

Uhrhan v. Union Pac. R.R., 617 N.E.2d 1182, 1187

(Ill. 1993) (same); Kalanick v. Burlington N.R.R., 788

P.2d 901, 904-05 (Mont. 1990) (same) with Drury v.

Missouri Pac. R.R., 905 S.W.2d 138, 149 (Mo. Ct. App.

E.D. 1995) (adopting “due care” standard); Eversole v.

Consolidated Rail Corp., 551 N.E.2d 846, 851-52 (Ind.

Ct. App. 1990) (adopting “ordinary prudence” stand-

ard); Narusiewicz v. Burlington N.R.R., 391 N.W.2d

895, 897 (Minn. Ct. App. 1986) (adopting “due care”

standard). Recent decisions thus reflect profound dif-

ferences in opinion among both state and federal courts,

resulting in an array of inconsistent decisions concerning

the correct standard for making contributory negligence

a jury issue. As the dissent plainly reveals in this case,

the standard applied can dramatically affect liability. App.

at 16a-20a.

“{(T]his Court is the only body capable of resolving

conflicts among the various lower courts.” Novack Inv.

Co. v. Setser, 454 U.S. 1064-65 (1981) (White, J., dis-

senting from the denial of certiorari). Indeed, “[{a] prin-

9

cipal purpose for which [this Court uses its] certiorari

jurisdiction . . . is to resolve conflicts among the United

States courts of appeals and state courts concerning the

meaning of provisions of federal law.” Braxton v. United

States, 500 U.S. 344, 347 (1991). Review by the Court

is especially crucial in this case because “the right to trial

by jury is too substantial a part of the rights accorded by

{the FELA]” to permit some courts to remove the issue of

contributory negligence from the jury’s consideration. See

Dice v. Akron, Canton & Youngstown R.R., 342 US.

359, 363 (1952) (holding that a state procedural rule

that permitted the judge rather than the jury to resolve

factual questions was not permissible under the FELA);

Rogers Vv. Missouri Pac. R.R., 352 U.S. 500, 509-10

(1957) (jury determinations are an integral part of the

FELA’s statutory scheme).

But the availability of a jury for contributory negli-

gence in a particular FELA case now depends pri-

marily on geography. In one jurisdiction the plaintiff

will not be held accountable for his failure to perform

his job safely, see, e.g., Birchem, 812 F.2d at 1047

(knowing use of defective equipment is not sufficient to

create jury question as to contributory negligence); Rivera

V. Farrell Lines, Inc., 474 F.2d 255, 258 (2d Cir. 1973)

(failure to clean up or avoid spill which caused fall is

not sufficient to create jury question), cert. denied, 414

U.S. 822 (1973); App. at 6a-9a (failure to clean truck

bed in order for plaintiff safely to position himself is not

sufficient to create jury question); Pruett v. Norfolk &

W. Ry., 632 N.E.2d 652, 655 (Ill. Ct. App. 1994) (forc-

ing defective switch into place while experiencing back

pain is not sufficient to create jury question); while in

another court he will, see, e.g., Tipton, 1992 WL 43540,

at **4 (failure to reduce the weight of trashbags be-

fore lifting them is evidence of contributory negligence) ;

Fashauer, 57 F.3d at 1280-81 (jury may assess the man-

ner in which plaintiff walked on wet surface and whether

or not plaintiff “act{[ed] with due care”); Higgins v. CSX

Transp., Inc., 455 S.E.2d 129, 131 (Ga. Ct. App. 1995)

10

(plaintiff's failure to position himself safely while cutting

down tree is evidence of contributory negligence); Mon-

roe V. Southern Ry., 436 S.E.2d 568, 570 (Ga. Ct. App.

1993) (failure to wear “ice creepers” on ice is evidence

of contributory negligence). Accordingly, the Court

should resolve the conflict among the lower courts and

decide the proper standard for contributory negligence.

2. The split among the federal appellate courts, and

the resulting disarray throughout the lower courts, stems

from some of those courts’ improper and inconsistent

attempts to reconcile the doctrines of assumption of the

risk and contributory negligence within the FELA’s statu-

tory framework. Thus, guidance as to the proper inter-

play between these two doctrines would unify the deci-

sional law in this area, and restore faithful judicial com-

pliance to the FELA’s comparative negligence scheme.

In 1908, Congress enacted the FELA to provide a

remedy for railroad employees injured as a result of their

employers’ negligence. With the enactment of the FELA,

Congress codified the notion of pure comparative negli-

gence in order to ameliorate the harsh consequences and

perceived unfairness of the compete bar to recovery asso-

ciated with traditional contributory negligence. Mary J.

Davis, Individual and Institutional Responsibility: A

Vision for Comparative Fault in Products Liability, 39

Vill. L. Rev. 281 (1994). The courts, however, con-

tinued to apply the doctrine of assumption of risk to bar

recovery. See, e.g., Seaboard Air Line Ry. v. Horton, 233

U.S. 492 (1914). Because of the difficulty in distinguish-

ing assumption of risk from contributory negligence, and

the perceived inequities of a complete bar to recovery,

in 1939 Congress amended the FELA to abolish as-

sumption of risk as a basis for denying all recovery to

a railroad employee. Tiller v. Atlantic Coast Line R.R..,

318 U.S. 54, 58 (1943). Although this Court instructed

lower courts to treat the FELA claims “as though no

doctrine of assumption of risk had ever existed,” id. at

64, some courts continue improperly to inject that con-

11

cept into their comparative negligence analyses in a

variety of ways.

Upon receiving a defendant’s claim of contributory

negligence, the Seventh, Eighth, Ninth, and Tenth Cir-

cuits initially classify the plaintiff's conduct as either

“assumption of risk” or “contributory negligence” depend-

ing on whether the “careless act or omission on the plain-

tiffs part tend[ed] to add new dangers to conditions that

the employer negligently created or permitted to exist.”

Taylor, 787 F.2d at 1316; see also Tersiner, 1991 WL

225897, at **2; Gish, 890 F.2d at 991; Birchem, 812

F.2d at 1049. If the court decides that a plaintiff has not

added new dangers, then the jury is not to be instructed

as to the contributory negligence claim. Instead, those

courts hold that the defendant is improperly raising an

assumption of risk claim. Thus, the railroad is held

100% accountable for the injury. Within this framework,

a court completely disposes of a defendant's contributory

negligence claim in direct contravention of this Court's

instruction that “[n]o case is to be withheld from a jury

on any theory of assumption of risk.” Tiller, 318 US.

at 67.

The Third Circuit generally submits the issue of con-

tributory negligence to the jury under a “reasonably

prudent person” standard. But the Third Circuit’s ap-

proach still considers the doctrine of assumption of risk.

In the Third Circuit, a contributory negligence claim will

not go to the jury if the claim is based on the allegation

that the plaintiff accepted dangerous employment or

performed in a manner that the employer directed, “re-

gardless of whether the plaintiff acted reasonably or

unreasonably” by accepting or performing the job.

Fashauer, 57 F.3d at 1280. All other conduct is sub-

mitted to the jury under a traditional reasonableness

standard. Jd. In this case petitioner did not direct re-

spondent’s actions and therefore the issue would have

been submitted to the jury if the case had arisen in Penn-

sylvania, New Jersey, or Delaware.

12

The Fifth and Sixth Circuits apply a straightforward

reasonableness standard to every aspect of the plaintiff's

conduct, including the choice of whether and how to per-

form a hazardous task. Tipton, 1992 WL 43540, at **2-

**4: Page v. St. Louis Southwestern Ry., 349 F.2d 820,

823-24 (Sth Cir. 1965). For example, an employee who

fails to avail himself of the safest alternative while per-

forming a dangerous task may be accountable for con-

tributory negligence if the jury finds that choice was un-

reasonable. See, e.g., Tipton, 1992 WL 43540, at **4;

Eversole v. Consolidated Rail Corp., 551 N.E.2d 846,

851 (Ind. Ct. App. 1990). If, on the other hand, an

employee has no choice but to perform a dangerous task

in a particular way, and that task does not entail extraor-

dinary risk, the jury likely will find that the employee’s

decision to perform the job was reasonable. See, e.g.,

Groves V. Illinois Cent. Gulf R.R., 563 So. 2d 496, 498-

99 (La. Ct. App. 1990). A plaintiff may still be held

contributorily negligent for unreasonably assuming a risk.’

In either event the jury is not arbitrarily prevented

from considering contributory negligence and therefore

can fairly allocate fault between the parties. This approach

reconciles the FELA’s assumption of risk preclusion with

its comparative negligence.* See David R. Owen & J.

Marks Moore, Comparative Negligence in Maritime Per-

sonal Injury Cases, 43 La. L. Rev. 941, 951 (1983).

1 Although the Ninth Circuit uses the “additional new dangers”

standard, it also has suggested that a plaintiff may be contribu-

torily negligent for assuming extraordinary risks. Jenkins v. Union

Pac. R.R., 22 F.3d 206, 211 (9th Cir. 1994); Taylor v. Burlington

N.R.R., 787 F.2d 1309, 1816 (9th Cir. 1986).

2 This straightforward comparison of the plaintiff's and defend-

ant’s fault is not unprecedented in the comparative negligence

arena. See, e.g., Uniform Comparative Fault Act § 1(b), 12 U.L.A.,

Civ. Proc. & Remedial Laws 45 (Supp. 1995) (comparative fault un-

der the act includes “unreasonable assumption of risk’) ; Harrison

v. Taylor, 768 P.2d 1321, 1828-29 (Idaho 1989); Hilen v. Hays,

673 S.W.2d 713, 718-20 (Ky. 1984).

13

In sum, the approach followed in the Fifth and Sixth

Circuits is simple, coherent, and complies with this

Court's instruction to treat the doctrine of assumption of

risk as though it never existed. Tiller, 318 U.S. at 64.

This Court should therefore grant certiorari and embrace

the approach followed in the Fifth and Sixth Circuits.

3. By applying the “additional new dangers” test in

this case, the Illinois Court of Appeals was not faithful to

the FELA’s plain language or purpose because the court

subjected the plaintiff and the defendant to two different

standards of negligence. Holding the defendant to an

ordinary negligence standard, while simultaneously refus-

ing to submit the issue of plaintiff's negligence to the jury

absent a showing that the plaintiff's “careless act or omis-

sion . . . add[ed] new dangers,” clearly involves use of

disparate negligence standards that is unsupported by any-

thing in the statute.

The FELA provides that “the fact that the employee may

have been guilty of contributory negligence shall not bar

a recovery, but the damages shall be diminished by the

jury in proportion to the amount of negligence attributable

to such employee.” 45 U.S.C. § 53. The plain language

of the FELA “does not distinguish between degrees of

negligence.” Fashauer v. New Jersey Transit Rail Opera-

tions, Inc., 57 F.3d 1269, 1283 (3d Cir. 1995); Page,

349 F.2d at 824. Moreover, the provision, read as a

whole, does not change the standard for assessing con-

tributory negligence; it merely describes the effects that a

successful contributory negligence claim has on recovery.

The 1939 amendment which abolished assumption of the

risk similarly does not distinguish between degrees of

negligence: “[{An injured] employee shall not be held to

have assumed the risks of his employment in any case

where such injury or death resulted in whole or in part

from the negligence of any of the officers, agents, or em-

14

ployees of such carrier.” 45 U.S.C. § 54. The natural

reading of § 54’s “whole or in part” language suggests

that if there is any negligence on the part of an employee,

including the injured employee, the injured employee shall

not be deemed to have assumed the risk. Thus, the

amendment “was clearly aimed at making the principles

of comparative negligence the guiding rules of decision

in accident cases.” Tiller, 318 U.S. at 65.

The FELA’s comparative negligence scheme was in-

tended equitably to apportion employer-employee respon-

sibilities. Jd.; Kernan v. American Dredging Co., 355

U.S. 426, 438 (1958); Page, 349 F.2d at 824. Congress

intended “ ‘the jury to weigh the fault of the injured em-

ployee and compare it with the negligence of the em-

ployer, and, in light of the comparison, do justice to all

concerned.” Tiller, 318 U.S. at 65 (quoting Hearings

on S. 1708, Subcommittee of the Senate Judiciary Com-

mittee, 76th Cong., Ist Sess. 78 (1939)). Moreover, a

pure comparative negligence scheme accounts for degrees

of negligerice by design. Accordingly, subjecting the par-

ties to different threshold standards undermines the pure

comparative negligence scheme embodied in the FELA.

Page, 349 F.2d at 824; Fashauer, 57 F.3d at 1282-83;

see also Gavagan v. United States, 955 F.2d 1016, 1019

n.7 (Sth Cir. 1992) (affirming jury instruction applying

same standards of care under Jones Act’s comparative

negligence scheme); Karvelis v. Constellation Lines S.A.,

806 F.2d 49, 53 nn.1 & 2 (2d Cir. 1986) (same), cert.

denied, 481 U.S. 1015 (1987); Brown v. OMI Corp., 863

F. Supp. 169 (S.D.N.Y. 1994) (refusing to apply dif-

ferent standards of care under Jones Act, 46 U.S.C.A.

§ 688 et seq.); Bunting v. Sun Co., 643 A.2d 1085, 1089

(Pa. Super. Ct. 1994) (same).

Finally, as the facts in this case plainly illustrate, the

“additional new dangers” test diminishes the safety in-

centives that are at the heart of the FELA’s enactment.

See generally Page, 349 F.2d at 824 (“[I]t is difficult to

15

see how safety is enhanced if the standard of perform-

ance by the injured worker is lowered.”); Jerry J. Phillips,

An Evaluation of the Federal Employers’ Liability Act,

25 San Diego L. Rev. 49 (1988) (pure comparative fault

aspect of the FELA serves as an incentive to employee

safety). In the case at bar, respondent was unquestion-

ably capable of clearing a space on the truck bed in order

safely tc put down the rail saw. His conduct thus creates

a fact question as to whether he acted reasonably under

the circumstances. If his actions were not reasonable, as

the dissenting judge found, then respondent’s recovery

(which is breathtaking in magnitude) should have been

reduced by his proportionate fault. At a minimum, the

issue should have been submitted to the jury with a

standard negligence instruction. But based on the suspect

“additional new dangers” standard, the court below re-

moved that issue from the jury and deprived petitioner

of a significant basis upon which to reduce the verdict

against it.

Sixty years is long enough to allow the issue of the

meaning of contributory negligence under the FELA to

“percolate” in the lower courts. The time has come for

the Court to determine how properly to apply the com-

parative negligence standard in Section 3 of the FELA

in a way that is consistent with the elimination of the

doctrine of assumption of risk. The decision below pro-

vides a perfect vehicle by which to resolve the decisional

conflict on this issue. Accordingly, certiorari should be

granted.

16

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

THOMAS W. ALVEY, JR. CARTER G. PHILLIPS *

KARL D. DEXHEIMER JENNIFER CHRISTOFFERSON

WILLIAM J. NIEHOFF SIDLEY & AUSTIN

THOMPSON & MITCHELL 1722 Eye Street, N.W.

525 West Main Street Washington, D.C. 20006

P.O. Box 750 (202) 736-8000

Belleville, IL 62222

(618) 277-4700

Counsel for Petitioner

January 2, 1996 * Counsel of Record