                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                   April 17, 2013 Session

 ANDREW SPENCER v. NORFOLK SOUTHERN RAILWAY COMPANY

                  Appeal from the Circuit Court for Hamilton County
                   No. 10C1029     W. Jeffrey Hollingsworth, Judge


                 No. E2012-01204-COA-R3-CV-FILED-JULY 29, 2013


Andrew Spencer (“Plaintiff”) sued Norfolk Southern Railway Company (“Railroad”) for
negligence under the Federal Employers’ Liability Act. After a jury trial, the Trial Court
entered judgment on the jury’s verdict finding and holding, inter alia, that the Railroad was
not at fault for Plaintiff’s injury. Plaintiff appeals raising an issue regarding jury instructions
concerning foreseeability and notice. We find that the jury instruction regarding
foreseeability and notice was misleading, and we vacate and remand for a new trial.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated;
                                  Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., P.J., and J OHN W. M CC LARTY, J., joined.

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

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

                                         Background

              Plaintiff was an employee of the Railroad. On May 16, 2010 Plaintiff suffered
an injury while working as a conductor and throwing a switch in the Railroad’s Chocowinity
yard in Beaufort County, North Carolina. Plaintiff filed suit against the Railroad pursuant
to the Federal Employers’ Liability Act alleging that the Railroad had negligently failed to
address problems with the switch and negligently failed to properly maintain the switch. The
case was tried before a jury in April of 2012.

               After trial, the Trial Court entered judgment on the jury’s verdict on April 17,
2012 finding and holding that the Railroad was not at fault for the injury suffered by Plaintiff
on May 16, 2010. Plaintiff filed a Motion for New Trial, which was denied by the Trial
Court. Plaintiff appeals to this Court raising an issue regarding the jury instructions on
foreseeability and notice.

                                          Discussion

             Although not stated exactly as such, Plaintiff raises one issue on appeal:
whether the Trial Court erred in its instructions to the jury regarding foreseeability and
notice.

             By way of background, this Court discussed, in detail, in Jordan v. Burlington
N. Santa Fe R.R. Co. the Federal Employers’ Liability Act:

               “The impetus for the [Federal Employers’ Liability Act (“FELA”), 45
       U.S.C.A. §§ 51-60] was that throughout the 1870’s, 80’s, and 90’s, thousands
       of railroad workers were being killed and tens of thousands were being
       maimed annually in what came to be increasingly seen as a national tragedy,
       if not a national scandal.” CSX Transp., Inc. v. Miller, 159 Md. App. 123, 858
       A.2d 1025, 1029 (Md. Ct. Spec. App. 2004). “In response to mounting
       concern about the number and severity of railroad employees’ injuries,
       Congress in 1908 enacted FELA to provide a compensation scheme for
       railroad workplace injuries, pre-empting state tort remedies.” Norfolk S. Ry.
       Co. v. Sorrell, 549 U.S. 158, 165, 127 S. Ct. 799, 166 L. Ed. 2d 638 (2007)
       (citing Second Employers’ Liability Cases, 223 U.S. 1, 53-55, 32 S. Ct. 169,
       56 L. Ed. 327 (1912)). FELA was passed to extend statutory protection to




                                              -2-
        railroad workers because of the high rate of injury to workers in that industry.1
        Blackburn v. CSX Transp., Inc., No. M2006-01352-COA-R10-CV, 2008 Tenn.
        App. LEXIS 336, 2008 WL 2278497, at *8 (Tenn. Ct. App. May 30, 2008);
        Reed v. CSX Transp., Inc., No. M2004-02172-COA-R3-CV, 2006 Tenn. App.
        LEXIS 620, 2006 WL 2771029, at *2 (Tenn. Ct. App. Sept. 26, 2006). “In
        adopting FELA, Congress created a remedy that ‘shifted part of the human
        overhead of doing business from employees to their employers.’” Pomeroy v.
        Ill. Cent. R.R. Co., No. W2004-01238-COA-R3-CV, 2005 Tenn. App. LEXIS
        294, 2005 WL 1217590, at *9 (Tenn. Ct. App. May 19, 2005) (quoting Consol.
        Rail Corp. v. Gottshall, 512 U.S. 532, 542, 114 S. Ct. 2396, 129 L. Ed. 2d 427
        (1994)). Congress recognized that the railroad industry was better able to
        shoulder the cost of industrial injuries and deaths than were injured workers
        or their families. Miller, 159 Md. App. at 131 (citing Kernan v. Am. Dredging
        Co., 355 U.S. 426, 431-32, 78 S. Ct. 394, 2 L. Ed. 2d 382 (1958)). “[FELA]
        was designed to put on the railroad industry some of the cost for the legs, eyes,
        arms, and lives which it consumed in its operations.” Pomeroy, 2005 Tenn.
        App. LEXIS 294, 2005 WL 1217590, at *17 (quoting Wilkerson v. McCarthy,
        336 U.S. 53, 68, 69 S. Ct. 413, 93 L. Ed. 497 (1949)(Douglas, J., concurring)).
        The Federal Employers’ Liability Act provides, in relevant part:

                        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.A. § 51. The statute is broad and remedial, and it is to be liberally
        construed in order to accomplish the aforementioned purposes. Blackburn,
        2008 Tenn. App. LEXIS 336, 2008 WL 2278497, at *8; Reed, 2006 Tenn.
        App. LEXIS 620, 2006 WL 2771029, at *2.




        1
         “The very title of the law, Federal Employers’ Liability Act, is confusingly overbroad.” Miller, 858
A.2d at 1029. It is not a “federal employer” law, but a federal law pertaining to railroads as employers. Id.
“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.” Id.

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               “Unlike a typical workers’ compensation scheme, which provides relief
        without regard to fault, Section 1 of FELA provides a statutory cause of action
        sounding in negligence ….” Sorrell, 549 U.S. at 165. Under FELA, the
        railroad-employer’s liability is premised upon its negligence. Reed, 2006
        Tenn. App. LEXIS 620, 2006 WL 2771029, at *2. In order to recover, an
        employee must show:

                (1) that an injury occurred while the employee was working
                within the scope of his employment;

                (2) that the employment was in the furtherance of the railroad’s
                interstate transportation business;

                (3) that the employer railroad was negligent; and

                (4) that the employer’s negligence played some part in causing
                the injury.

        Id. (citing Jennings v. Ill. Cent. R.R. Co., 993 S.W.2d 66, 69-70 (Tenn. Ct.
        App. 1998)).… FELA does not define negligence. Id. When considering
        whether an employer was negligent under FELA, “courts are to analyze the
        elements necessary to establish a common law negligence claim.” Id. (citing
        Adams v. CSX Transp., Inc., 899 F.2d 536, 539 (6th Cir. 1990); Davis v.
        Burlington Northern, Inc., 541 F.2d 182 (8th Cir. 1976), cert. denied, 429 U.S.
        1002, 97 S. Ct. 533, 50 L. Ed. 2d 613 (1976)). The issue of negligence is to
        be determined “by the common law principles as established and applied in
        federal courts.”2 Reed, 2006 Tenn. App. LEXIS 620, 2006 WL 2771029, at
        *2 (citations omitted). Thus, the plaintiff must prove the traditional elements
        of negligence: duty, breach, foreseeability, and causation. Id. (citing Robert
        v. Consol. Rail Corp., 832 F.2d 3, 6 (1st Cir. 1987)). However, FELA
        deviated from the common law by abolishing the railroad’s common law
        defenses of assumption of the risk, § 54, and it rejected contributory
        negligence in favor of comparative negligence, § 53. Sorrell, 549 U.S. at 166,
        168. In FELA cases, an employee’s negligence does not bar relief, but the
        employee’s recovery is diminished in proportion to his fault. Id. at 166.


        2
         “FELA provides for concurrent jurisdiction of the state and federal courts, § 56, although
substantively FELA actions are governed by federal law.” Sorrell, 549 U.S. at 165-66 (citing Chesapeake
& Ohio R. Co. v. Stapleton, 279 U.S. 587, 590, 49 S. Ct. 442, 73 L. Ed. 861 (1929)); see also Jennings v. Ill.
Cent. R.R. Co., 993 S.W.2d 66, 70 (Tenn. Ct. App. 1998).

                                                     -4-
               “Under FELA, the employer railroad has a duty to provide a reasonably
       safe workplace.” Reed, 2006 Tenn. App. LEXIS 620, 2006 WL 2771029, at
       *3 (citing Bailey v. Cent. Vt. Ry., 319 U.S. 350, 352, 63 S. Ct. 1062, 1062, 87
       L. Ed. 1444 (1943); Ulfik v. Metro-North Commuter R.R., 77 F.3d 54, 58 (2d
       Cir. 1996); Adams, 899 F.2d at 539). This does not mean that the railroad has
       the duty to eliminate all workplace dangers, but it does have the “duty of
       exercising reasonable care to that end.” Van Gorder v. Grand Trunk W. R.R.,
       Inc., 509 F.3d 265, 269 (6th Cir. 2007) cert. denied, 129 S. Ct. 489, 172 L. Ed.
       2d 356 (2008) (citing Baltimore & Ohio S.W.R. Co. v. Carroll, 280 U.S. 491,
       496, 50 S. Ct. 182, 74 L. Ed. 566 (1930)). “A railroad breaches its duty to its
       employees when it fails to use ordinary care under the circumstances or fails
       to do what a reasonably prudent person would have done under the
       circumstances to make the working environment safe.” Id. (citing Tiller v. Atl.
       C.L.R. Co., 318 U.S. 54, 67, 63 S. Ct. 444, 87 L. Ed. 610 (1943); Aparicio v.
       Norfolk & W. Ry., 84 F.3d 803, 811 (6th Cir. 1990)). In other words, “a
       railroad breaches its duty when it knew, or by the exercise of due care should
       have known that prevalent standards of conduct were inadequate to protect the
       plaintiff and similarly situated employees.” Id. at 269-70 (internal quotations
       omitted).

Jordan v. Burlington N. Santa Fe R.R. Co., No. W2007-00436-COA-R3-CV, 2009 Tenn.
App. LEXIS 8, at **14-20 (Tenn. Ct. App. Jan. 15, 2009), Rule 11 appl. perm. appeal denied
Aug. 31, 2009 (footnotes in original but renumbered).

             With regard to jury instructions, this Court explained in Jordan v. Burlington
N. Santa Fe R.R. Co.:

              “Jury instructions must be correct and fair as a whole, although they do
       not have to be perfect in every detail.” Pomeroy [v. Illinois Central R.R. Co.,
       No. W2004-01238-COA-R3-CV], 2005 Tenn. App. LEXIS 294, 2005 WL
       1217590, at *3 [(Tenn. Ct. App. May 19, 2005)] (citing Wielgus v. Dover
       Indus., 39 S.W.3d 124, 131 (Tenn. Ct. App. 2001)). Jury instructions must be
       plain and understandable, and inform the jury of each applicable legal
       principle. Id. On appeal, we review jury instructions in their entirety and in
       context of the entire charge. Id. We will not invalidate a jury charge if, when
       read as a whole, it fairly defines the legal issues in the case and does not
       m islead the jury.            H ens le y v . C S X T r a n s p ., In c ., N o .
       E2007-00323-COA-R3-CV, 278 S.W.3d 282, 2008 Tenn. App. LEXIS 147,
       2008 WL 683755, at *2 (Tenn. Ct. App. Mar. 14, 2008) perm. app. denied,
       2008 Tenn. LEXIS 867 (Tenn. Nov. 17, 2008). “The trial court should give

                                             -5-
        requested special jury instructions when they are a correct statement of the
        law, embody the party’s legal theory, and are supported by the proof.”
        Pomeroy, 2005 Tenn. App. LEXIS 294, 2005 WL 1217590, at *3 (citing Otis
        v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 445 (Tenn. 1992)).
        “However, the trial court may decline to give a special instruction when the
        substance of the instruction is covered in the general charge.” Id. We will not
        reverse the denial of a special request for an additional jury instruction where
        the trial court fully and fairly charged the jury on the applicable law. Id.

Jordan v. Burlington N. Santa Fe R.R. Co., 2009 Tenn. App. LEXIS 8, at **33-34.

              Plaintiff contends that the Trial Court erred when it instructed the jury with
regard to foreseeability and notice. “[R]easonable foreseeability of harm is an essential
ingredient of Federal Employers’ Liability Act negligence.” Gallick v. Baltimore & Ohio
R.R. Co., 372 U.S. 108, 83 S. Ct. 659, 665, 9 L. Ed. 2d 618 (1963). In Gallick, the United
States Supreme Court noted that the jury in that case correctly had been charged with regard
to reasonable foreseeability of harm 3 , and stated:

        The jury had been instructed that negligence is the failure to observe that
        degree of care which people of ordinary prudence and sagacity would use
        under the same or similar circumstances; and that defendant’s duty was
        measured by what a reasonably prudent person would anticipate as resulting
        from a particular condition - - “defendant’s duties are measured by what is
        reasonably foreseeable under like circumstances” - - by what “ in the light of
        the facts then known, should or could reasonably have been anticipated.”

Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 83 S. Ct. 659, 665-66, 9 L. Ed. 2d 618
(1963) (footnotes omitted).

                With regard to foreseeability and notice in FELA cases, the Sixth Circuit has
explained:




        3
          The Gallick Court stated that “this requirement [to find a reasonable foreseeability of harm] has
been satisfied in the present case by the jury’s findings … of negligence in maintaining the filthy pool of
water.” Gallick, 83 S. Ct. at 665. The Gallick Court then discussed the jury instructions with regard to this
issue, as quoted and discussed in this Opinion. Thus, it reasonably follows that the Gallick Court found that
the jury had been instructed correctly with regard to the reasonable foreseeability of harm.

                                                    -6-
              The law is clear that notice under the FELA may be shown from facts
       permitting a jury to infer that the defect could have been discovered by the
       exercise of reasonable care or inspection:

                      Under familiar law, defendant could not be convicted of
              negligence, absent proof that such defect was known, or should
              or could have been known, by defendant, with opportunity to
              correct it. 56 C.J.S. Master and Servant § 244, p. 1000.
              Carnegie Steel Co. v. Byers, 149 F. 667, 669 (C.A. 6, 1907);
              Atlantic Coast Line R. Co. v. Collins, 235 F.2d 805, 809 (C.A.
              4, 1956)[]. This rule is applicable to FELA actions where
              negligence is essential to recovery. The establishment of such
              an element, however, may come from proof of facts permitting
              a jury inference that the defect was discovered, or should have
              been discovered, by the exercise of reasonable care or
              inspection. 56 C.J.S. Master and Servant § 248, p. 1002….

Szekeres v. CSX Transportation, Inc., 617 F.3d 424, 430-31 (6th Cir. 2010) (quoting Miller
v. Cincinnati, New Orleans & Tex. Pac. Ry. Co., 317 F.2d 693, 695 (6th Cir. 1963)).

              Similarly, our own Supreme Court has stated:

       To prove a breach of duty under the 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.”

Mills v. CSX Transportation, Inc., 300 S.W.3d 627, 633 (Tenn. 2009) (quoting Van Gorder
v. Grand Trunk W. R.R., 509 F.3d 265, 269-70 (6th Cir. 2007)).

               In charging the jury in the case now before us, the Trial Court instructed, in
pertinent part:

               In this case Mr. Spencer must prove that Norfolk Southern, one, knew
       or should have known that on the day of the incident the switch was not
       operating properly; two, that the switch was not operating properly because of
       Norfolk Southern’s negligence in failing to properly maintain the switch; and,
       three, the incident - - that the incident on May 16, 2010 caused the injury the
       plaintiff claims to have suffered.



                                             -7-
                                             ***

              The railroad 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 the complaints, letters, petitions, reasonable investigations and safety
       meetings.

               In this case the plaintiff must show that with due care Norfolk Southern
       knew or should have known that on the day of the incident the switch was not
       operating properly. If you find Norfolk Southern knew or should have known
       that the conditions in which Mr. Spencer worked could cause injury to him and
       failed to rectify those conditions, then it, the railroad, was negligent. Whether
       or not the workplace was reasonably safe is a fact for you to decide.

              During their deliberations, the jury asked a question regarding whether Plaintiff
was required to prove all three of the elements as charged, i.e.:

       that Norfolk Southern, one, knew or should have known that on the day of the
       incident the switch was not operating properly; two, that the switch was not
       operating properly because of Norfolk Southern’s negligence in failing to
       properly maintain the switch; and, three, the incident - - that the incident on
       May 16, 2010 caused the injury the plaintiff claims to have suffered.

The jury asked if answering no to any one of these questions must result in a finding of no
negligence. The Trial Court answered that all three must be found in order to find
negligence.

               Plaintiff argues in his brief on appeal that it was error to limit the instruction
regarding notice and foreseeability to the “day of the incident.” After carefully and
thoroughly reviewing the jury instructions in their entirety, as we must, we find that this
limitation was misleading to the jury as it operated to limit the time period during which the
Railroad could have received notice of an unsafe work condition to the day of the incident.
The instruction as given by the Trial Court 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 the FELA and the cases
interpreting the FELA. Given that the FELA is to be liberally construed to accomplish its
purposes as discussed in Jordan v. Burlington N. Santa Fe R.R. Co., the Trial Court’s jury

                                               -8-
instruction on foreseeability and notice improperly focused the jury as to what the Railroad
knew or should have known only on that one specific day rather than looking at the more
expanded period of time of before the accident occurred.

              In closing argument at trial the Railroad’s attorney argued, as pertinent to the
issue before us:

               Was there something wrong with that switch on May 16th, 2010; did
       Norfolk Southern have notice of that problem with the switch on that day and
       failed to correct it before he threw that switch; and did Mr. Spencer’s injury
       result from that event.

                                            ***

       Did the railroad know that - - did they know or should have known that this
       switch - - in this case the plaintiff must show that with due care Norfolk
       Southern knew or should have known that on the day of the incident the switch
       was not operating properly. On the day of the incident.

                                            ***

              Did the railroad know or should have known that there was a problem
       with that switch on the day of that incident? No.

               There is no evidence for you to conclude that Norfolk Southern knew
       that there was any problem with that switch on May 16th that they should have
       corrected.


               We note that the Railroad’s attorney did nothing improper during closing
argument in stressing the phrases “on the day of the incident” or “May 16th,” both of which
the Trial Court used in its jury instruction. Utilizing a phrase taken directly from a trial
court’s instructions to the jury when making argument can be a valuable technique.
Unfortunately, the phrase limiting notice to the “day of the incident” was itself misleading
as to the time period during which the Railroad could have received notice of a problem with
the switch. As such, having the phrase repeated during closing argument compounded the
problem by focusing the jury solely on what proof Plaintiff had presented that there was
something wrong with the switch on May 16th and whether the Railroad knew or should
have known that the switch was not operating properly on May 16th. The law on this point
instead is, as set out in the Railroad’s own proposed jury instructions on notice and

                                             -9-
foreseeability, that as to the Railroad’s conduct “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.”

               Plaintiff also argues in his brief on appeal that the Trial Court erred in refusing
to give special instructions regarding foreseeability submitted by both parties. Plaintiff
concedes in this brief on appeal that the special instruction submitted by the Railroad
correctly stated the applicable law with regard to foreseeability and notice. Plaintiff states
that the Railroad’s proposed charge read:

               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.

               We agree that if the Trial Court had utilized this special instruction, the error
as discussed above would have been prevented. As such, we agree with Plaintiff that it was
error for the Trial Court to refuse to give the Railroad’s proposed special instruction
considering the jury charge as it was given. As Plaintiff has conceded that this charge
correctly states the law, and we agree, the Trial Court may wish to consider utilizing this
special instruction upon remand in the new trial.

                                          Conclusion

               The judgment of the Trial Court is vacated, and this cause is remanded to the
Trial Court for a new trial and any other further proceedings consistent with this Opinion and
for collection of the costs below. The costs on appeal are assessed against the appellee,
Norfolk Southern Railway Company.




                                                     _________________________________
                                                     D. MICHAEL SWINEY, JUDGE




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