                    IN THE SUPREME COURT OF TENNESSEE
                               AT KNOXVILLE
                        May 28, 2014 Session Heard at Cookeville1

 ANDREW SPENCER v. NORFOLK SOUTHERN RAILWAY COMPANY

           Appeal by Permission from the Court of Appeals, Eastern Section
                        Circuit Court for Hamilton County
                  No. 10C1029     W. Jeffrey Hollingsworth, Judge



                No. E2012-01204-SC-R11-CV            - Filed August 29, 2014


        The plaintiff, who was injured while pulling a switch for his employer, Norfolk
Southern Railway, filed suit for negligence under the Federal Employers’ Liability Act. The
jury returned a verdict in favor of the defendant railroad. The Court of Appeals, ruling that
the trial court had provided an erroneous jury instruction, reversed the jury verdict and
granted the plaintiff a new trial. Because we find that the instruction qualifies as
“substantially accurate” in the context of the entire charge, we reverse the judgment of the
Court of Appeals and reinstate the verdict of the jury.

    Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
                                     Reversed

G ARY R. W ADE, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Craig R. Allen and Benjamin T. Reese, Chattanooga, Tennessee, for the appellant, Norfolk
Southern Railway Company.

John A. Moss and John D. Steel, Admitted Pro Hac Vice, Atlanta, Georgia; John A. Day,
Brentwood, Tennessee; and Michael E. Richardson, Chattanooga, Tennessee, for the
appellee, Andrew Spencer.




       1
         Oral argument was heard in this case on May 28, 2014, at Tennessee Technological University in
Cookeville, Putnam County, Tennessee, as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing
Legal Education for Students) project.
                                          OPINION
                             I. Facts and Procedural History
        On May 16, 2010, Andrew Spencer (the “Plaintiff”), an employee of Norfolk Southern
Railway Company (the “Railroad”), seriously injured his back when he threw a switch in the
rail yard in an effort to move a section of track. The Plaintiff sued the Railroad under the
Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51–60 (2006), alleging that the
Railroad was negligent because it knew or should have known that the switch was not
operating properly and failed to take adequate precautionary measures to ensure safe working
conditions.

         Prior to trial, the Plaintiff and the Railroad each requested special jury instructions
with respect to the Railroad’s knowledge of the condition of the switch. The trial court
conferred with counsel in an effort to prepare proper instructions but the Plaintiff objected
to the trial court’s proposed instruction on notice. The trial court overruled that objection and
also denied the special notice instructions sought by the Plaintiff and the Railroad. At the
conclusion of the proof, the trial court provided the following instruction:

                In this case [the Plaintiff] must prove that [the Railroad], [(1)] knew or
       should have known that on the day of the incident the switch was not operating
       properly; [(2)] that the switch was not operating properly because of [the
       Railroad’s] negligence in failing to properly maintain the switch; and,
       [(3)] . . . that the incident on May 16, 2010[,] caused the injury the [P]laintiff
       claims to have suffered.

       ....

               The [R]ailroad is said to have notice of an unsafe work condition if it
       actually knows or reasonably should have known of the unsafe condition based
       on . . . complaints, letters, petitions, reasonable investigations[,] and safety
       meetings.

               In this case the [P]laintiff must show that with due care [the Railroad]
       knew or should have known that on the day of the incident the switch was not
       operating properly. If you find [that the Railroad] knew or should have known
       that the conditions in which [the Plaintiff] worked could cause injury to him
       and failed to rectify those conditions, then . . . the [R]ailroad[] was negligent.

(Emphasis added.) Following the trial court’s charge to the jury, the Plaintiff again objected
to the trial court’s notice instruction, and the trial court again overruled the objection.



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       During its deliberations, the jury submitted a question as to whether the Plaintiff was
required to prove all three elements as charged in the first paragraph of this portion of the
instruction. The jury inquired whether a “no” answer to any of these elements necessarily
required a finding in favor of the Railroad. The trial court confirmed that all three elements
had to be present in order to find negligence. Afterwards, the jury returned a verdict for the
Railroad.

        In his motion for a new trial, the Plaintiff challenged the propriety of the notice
instruction, claiming that the trial court had erroneously narrowed the “notice window” by
instructing the jury that the Railroad could be found negligent only if it “knew or should have
known that, on the day of the incident, the switch was not operating properly.” (Emphasis
added.) According to the Plaintiff, the inclusion of the phrase “on the day of the incident”
improperly required him to prove that the Railroad had obtained knowledge of the condition
of the switch on the actual date of the incident, rather than on some prior date.2 The trial
court rejected the Plaintiff’s contention and denied his motion for a new trial, concluding that
the instructions, when read in their entirety, did not require proof of notice on the specific
date of the injury.

         The Court of Appeals reversed, holding that the trial court’s notice instruction
“improperly focused and limited the jury on whether the Railroad knew or should have
known that the switch was not operating properly on May 16, 2010,” and that “[l]imiting the
notice and foreseeability requirement to what the Railroad knew or should have known on
that one single day was improper and placed a burden upon the Plaintiff not required
by . . . FELA and the cases interpreting . . . FELA.” Spencer v. Norfolk S. Ry., No. E2012-
01204-COA-R3-CV, 2013 WL 3946118, at *5 (Tenn. Ct. App. July 29, 2013).

       We granted the Railroad’s application for permission to appeal. Although stated as
two issues in the Railroad’s application and in its brief, there is really a single issue before
this Court: Whether the jury instruction requiring the Plaintiff to prove that the Railroad
knew or should have known that on the day of the incident the switch was not operating
properly, was substantially accurate or was so misleading as to require a new trial.




       2
           At trial, the Plaintiff phrased his objection as follows:

       [W]hat [the Plaintiff] must prove is not that the [R]ailroad knew or should have known that
       the switch was not operating properly. . . . [The Plaintiff] must prove that the [R]ailroad
       failed to properly maintain the switch. . . . [T]hey didn’t have to know that the switch was
       not operating properly on that day. That’s not the burden. It’s that it was not properly
       maintained.

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                                    II. Standard of Review
        “Whether a jury instruction is erroneous is a question of law and is therefore subject
to de novo review with no presumption of correctness.” Nye v. Bayer Cropscience, Inc., 347
S.W.3d 686, 699 (Tenn. 2011) (citing Solomon v. First Am. Nat’l Bank of Nashville, 774
S.W.2d 935, 940 (Tenn. Ct. App. 1989)). Trial courts have “a duty to impart ‘substantially
accurate instructions concerning the law applicable to the matters at issue.’” Id. (quoting
Hensley v. CSX Transp., Inc., 310 S.W.3d 824, 833 (Tenn. Ct. App. 2009)). This is
important because “[t]he legitimacy of a jury’s verdict is dependent on the accuracy of the
trial court’s instructions, which are the sole source of the legal principles required for the
jury’s deliberations.” Id. In determining whether a jury instruction is substantially accurate,
we review the charge in its entirety and consider it as a whole, and we will not invalidate an
instruction that “‘fairly defines the legal issues involved in the case and does not mislead the
jury.’” Id. (quoting Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn.
1992)). Moreover, “[j]ury instructions are not measured against [a] standard of perfection.”
Akers v. Prime Succession of Tenn., Inc., 387 S.W.3d 495, 504 (Tenn. 2012) (first alteration
in original) (quoting City of Johnson City v. Outdoor W., Inc., 947 S.W.2d 855, 858 (Tenn.
Ct. App. 1996)).

                                     III. Analysis
                       A. The Federal Employers’ Liability Act
        FELA, enacted by Congress in 1908, provides, in pertinent part, as follows:

                Every common carrier by railroad while engaging in
        commerce . . . shall be liable in damages to any person suffering injury while
        he is employed by such carrier in such commerce . . . for such 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 cars, engines, appliances, machinery, track, roadbed,
        works, boats, wharves, or other equipment.

45 U.S.C. § 51.3 A plaintiff may bring an action under FELA in either federal or state court.
Id. § 56. Although FELA claims filed in state court generally are subject to state procedural
rules, federal substantive law always controls FELA claims, regardless of the court in which
such claims are filed. Mills, 300 S.W.3d at 631. Thus, we look to federal substantive law
for the four elements of a FELA claim:


        3
          FELA pertains only to railroads in their capacity as employers. See Mills v. CSX Transp., Inc., 300
S.W.3d 627, 630 & n.2 (Tenn. 2009); see also CSX Transp., Inc. v. Miller, 858 A.2d 1025, 1028-29 (Md.
Ct. Spec. App. 2004) (“The only possible defendants are railroads engaged in interstate commerce. The only
possible plaintiffs are the employees of those railroads who are injured on the job.”).

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       (1) the employee was injured in the scope of employment;
       (2) the employee’s employment was in furtherance of the railroad’s interstate
       transportation business;
       (3) the railroad was negligent; and
       (4) the railroad’s negligence “played some part in causing the injury for which
       [the employee] seeks compensation under FELA.”

Id. (alteration in original) (quoting Van Gorder v. Grand Trunk W. R.R., 509 F.3d 265, 269
(6th Cir. 2007)).

       The jury instruction at issue pertains to the third element of the Plaintiff’s FELA
claim—the negligence of the Railroad—which required the Plaintiff to prove the common
law elements of negligence: duty, breach, foreseeability, and causation. Adams v. CSX
Transp., Inc., 899 F.2d 536, 539 (6th Cir. 1990) (quoting Robert v. Consol. Rail Corp., 832
F.2d 3, 6 (1st Cir. 1987)). Under FELA, a railroad has a duty to provide its employees with
a reasonably safe place in which to work. Mills, 300 S.W.3d at 633 (quoting Van Gorder,
509 F.3d at 269). To prove a breach of this duty, the evidence must establish that the railroad
had notice; that is, that the railroad knew or should have known of the condition of the
workplace that caused the employee’s injury. Szekeres v. CSX Transp., Inc., 617 F.3d 424,
430-31 (6th Cir. 2010) (“Under [the] law, [the railroad] could not be convicted of negligence,
absent proof that such defect was known, or should or could have been known, by [the
railroad], with opportunity to correct it.” (quoting Miller v. Cincinnati, New Orleans & Tex.
Pac. Ry., 317 F.2d 693, 695 (6th Cir. 1963))); see also Mills, 300 S.W.3d at 633 (“To prove
a breach of duty under . . . FELA, an employee must show that the railroad knew, or by the
exercise of due care should have known[,] that prevalent standards of conduct were
inadequate to protect [the employee] and similarly situated employees.” (third alteration in
original) (quoting Van Gorder, 509 F.3d at 269-70) (internal quotation marks omitted)).
Such notice need not be established by direct evidence; a jury may infer that the workplace
condition could have been discovered by the defendant railroad at any time prior to the injury
through the exercise of reasonable care or inspection. Szekeres, 617 F.3d at 431 (quoting
Miller, 317 F.2d at 695).

                                   B. The Jury Instruction
        In this appeal, the Railroad argues that the trial court’s notice instruction, in proper
context, was substantially accurate, meaning that the instruction was not misleading and
fairly defined for the jury the legal issue of notice. The Railroad maintains that the notice
instruction did not improperly require the Plaintiff to show that the Railroad was placed on
notice of the unsafe switch on the specific date of the injury, and that the entirety of the
instructions demonstrated that the requisite notice could have been established at any time



                                              -5-
prior to the incident. We agree.4

       When holding that the instruction given by the trial court was erroneous and warranted
a new trial, the Court of Appeals offered the following rationale:

        The instruction as given by the [t]rial [c]ourt improperly focused and limited
        the jury on whether the Railroad knew or should have known that the switch
        was not operating properly on May 16, 2010. In other words, did the Railroad
        have knowledge on May 16, 2010[,] that the switch was not operating properly
        on that day. Limiting the notice and foreseeability requirement to what the
        Railroad knew or should have known on that one single day was improper and
        placed a burden upon the Plaintiff not required by . . . FELA and the cases
        interpreting . . . FELA.

Id. at *5. The Court of Appeals further observed that the Plaintiff had acknowledged the
special instruction submitted by the Railroad, although rejected by the trial court, as a proper
statement of the law. Id. at *6. That special instruction provided as follows:

        The defendant railroad’s duty of care is measured by what is reasonably
        foreseeable under like circumstances. That means that, in measuring the
        defendant’s conduct here, the point of view to be taken should be the view
        before the accident occurred, to see what, in the light of the facts then known,
        should or could reasonably have been anticipated. A defendant is not required
        to guard against that which a reasonably prudent person, under the
        circumstances, would not anticipate as likely to happen. If a defendant has no
        reasonable ground to anticipate that a particular condition would or might
        result in an accident and injury, it has no duty to correct that condition.

Id. The Court of Appeals pointed out that “if the [t]rial [c]ourt had utilized this special
instruction, the error as discussed above would have been prevented,” and suggested that on
remand for a new trial the court may wish to utilize this instruction. Id.

        While the special instruction proposed by the Railroad might have been more clear
as to the required timing of the receipt of notice, it is not, in our view, a superior instruction.
In the future, a more precise statement regarding the notice required to establish a breach of


        4
         The Court of Appeals, concluding that the notice instruction was misleading and therefore in error,
granted the Plaintiff a new trial without conducting a harmless error analysis. See Spencer, 2013 WL
3946118, at *5-6. In light of our holding that the instruction was not erroneous, we need not reach the
Railroad’s additional argument that any error in the instruction was harmless.

                                                    -6-
duty would include language regarding whether a defendant knew or should have known at
a time sufficiently before the incident in question such that the defendant could have taken
action to prevent the incident or ameliorate its effects. See Szekeres, 617 F.3d at 431.
Nevertheless, the instruction provided by the trial court, in our view, was substantially
accurate and, therefore, was not erroneous. The trial court’s instruction did not state that the
Railroad must have obtained its knowledge only on the actual date of the Plaintiff’s injury.
Rather, under the instruction provided by the trial court, this knowledge of the condition of
the switch on the date of the incident could have been obtained by the Railroad prior to the
date of the incident. If the Plaintiff had proof that the Railroad received notice of the
condition of the switch on a date prior to the incident, such proof also would establish that
the Railroad knew or should have known of the unsafe condition on the day of the incident,
absent proof that the prior condition had been corrected during the intervening time period.
The reasonable interpretation of the instruction—requiring the Plaintiff to prove that the
Railroad “knew or should have known that on the day of the incident the switch was not
operating properly”—is that the proof had to establish that the switch was not operating
properly at the time of the incident and that the Railroad was aware or should have been
aware of this fact.5

        Moreover, there is nothing in the trial court’s instruction to suggest that the Railroad
would be insulated from liability if it had received notice prior to the date of the incident
resulting in the Plaintiff’s injury. In fact, the trial court explained as a part of its instruction
that notice to the Railroad could have been “based on . . . complaints, letters, petitions,
reasonable investigations and safety meetings.” These examples clearly indicate that the
Railroad’s notice of the defective switch could have occurred at any time prior to the
incident. If the Railroad had received notice of the defective condition of the switch a week
before the incident, for example, and the defect had not been corrected by the time of the
Plaintiff’s injury, the Railroad still would have possessed such knowledge of the defect when
the incident occurred.

      Finally, our interpretation of the instruction is supported by portions of defense
counsel’s closing argument. Although counsel for the Railroad included in his closing
argument the subject language from the trial court’s instruction on notice, he also made the

        5
          The grammatical structure of the jury charge clearly supports this interpretation. The placement
of the word “that” before “on the day of the incident” is important. If the word “that” had been placed after
“on the day of the incident,” then the Plaintiff might have a stronger argument that the trial court improperly
narrowed the “notice window.” As given, however, the instruction specifies the time at which “the switch
was not operating properly,” not the time when the Railroad “knew or should have known” of the condition
of the switch. In other words, the most reasonable interpretation of the instruction is to say, “The Plaintiff
was required to prove that the Railroad knew or should have known that the switch was not operating
properly on the day of the incident.”

                                                     -7-
following statements:

              If you find that [the Railroad] knew or should have known that the
       conditions on which [the Plaintiff] worked could have caused [his injury] and
       [the Railroad] failed to rectify that condition, then it was negligent. But [the
       Plaintiff must] prove that [the Railroad] knew that day or before that day and
       didn’t correct it.

       ....

       [O]n May 11, 2010, [an assistant track supervisor for the Railroad] threw that
       switch and found no problems with it and said that it did not need
       maintenance, it did not need sweeping, it did not need graphiting. May 11,
       five days before [the Plaintiff’s] incident.

            It is further undisputed that from that date until the date of the incident,
       May 16, there were no complaints.

       ....

              So I submit to you, for [the Plaintiff] to prevail in this case, he’s going
       to have to put on proof, prove to you by a preponderance of the evidence that
       somebody complained about that switch on May 13, 14 or 15, and it wasn’t
       taken care of like it should have been . . . .

(Emphasis added.) These statements indicate that the Railroad recognized that the Plaintiff’s
negligence claim could have been established by proof that the Railroad was on notice of the
condition of the switch at some time prior to the date of the incident.

                                        IV. Conclusion
        The notice instruction, in context, qualifies as “substantially accurate” because, if not
ideal, the instruction adequately defined the law with respect to notice and did not mislead
the jury. The instruction, therefore, was not erroneous and a new trial is not warranted. As
discussed, however, a more precise statement of the law would instruct the jury to determine
whether a defendant knew or should have known at a time sufficiently before the incident
in question such that the defendant could have taken action to prevent the incident or
ameliorate its effects. The judgment of the Court of Appeals is reversed and the verdict of
the jury is reinstated. Costs are assessed to Andrew Spencer and his surety, for which
execution may issue if necessary.




                                               -8-
      _________________________________
      GARY R. WADE, CHIEF JUSTICE




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