NORFOLK SOUTHERN RAILWAY CO.
HARTRY et al.
granted certiorari in this case to consider whether Winford
Hartry's claim under the Federal Employers' Liability
Act ("FELA"), 45 USC § 51 et seq., is
precluded by regulations issued pursuant to the Federal
Railroad Safety Act ("FRSA"), 49 USC § 20101
et seq. Because we conclude that FRSA and its regulations do
not preclude Hartry's FELA claim, we affirm the decision
of the Court of Appeals.
Viewed in the light most favorable to the plaintiffs as the
nonmoving party on a motion for summary judgment, the
underlying facts, as the Court of Appeals presented them, are
The record shows that on June 16, 2010, crossing gates were
down at a public railway-roadway crossing, which position
normally indicates that a train is approaching the crossing;
occasionally gates will be down if a railway is performing
maintenance or if they are malfunctioning. As [Marvin Ronald
Johnson, Jr.] approached the railroad crossing driving his
28-foot-long truck with attached dumpster, he saw that the
gates were down but cars were driving around the gates and
over the crossing. Johnson followed suit, driving around the
crossing gates into the path of an oncoming train on which
[Winford] Hartry was serving as engineer. Hartry was injured
as a result of the collision.
Witnesses in the area averred that the crossing gates were
down by at least 9:00 a.m. on June 15, 2010 (the day before
the accident), and because they were down without trains
crossing, drivers were traversing the crossing despite the
gates being down. A delivery driver averred that he had
traversed the crossing at least 15 to 20 times over the
course of June 15 and 16 while the gates were down and prior
to the accident. Johnson had traversed the crossing in spite
of the warning gates being down a number of times since 4:00
p.m. on June 15 without incident.
[Norfolk Southern Railway Company] employees also worked in
the area of the crossing on two occasions during the day on
June 15 and were in the vicinity for several other hours of
the day during which other witnesses testified that the gates
were staying down and signaling without trains actually
approaching during that time. The employees contended,
however, that they did not witness any malfunctions.
Hartry v. Ron Johnson Jr. Enter., Inc., 347 Ga.App.
55, 56 (815 S.E.2d 611) (2018).
and his wife, Geraldine, brought suit against Johnson,
alleging claims of negligence, loss of consortium, bad faith,
and punitive damages under Georgia law. Hartry also brought
claims against Norfolk Southern under FELA for violations of
that act, ultimately focusing on his allegation that Norfolk
Southern was responsible for maintaining the crossing gates,
which dangerously malfunctioned, resulting in Norfolk
Southern's failure to provide Hartry with a reasonably
safe place to work. See id. at 55.
Southern moved for summary judgment on this FELA claim, which
the trial court granted on the basis that Hartry's FELA
claim was precluded by regulations promulgated under FRSA by
the Federal Railroad Authority ("FRA"). Thereafter,
the case proceeded to a jury trial on the state-law claims in
which the jury returned a verdict for the Hartrys.
the conclusion of the case, the Hartrys appealed, arguing
that the trial court erred in granting summary judgment to
Norfolk Southern after determining that Hartry's FELA
claim was precluded by the FRSA regulations and in
determining that no question of fact existed as to whether
Norfolk Southern had notice of a gate malfunction. The Court
of Appeals agreed with the Hartrys that the trial court erred
in determining that Hartry's FELA claim against Norfolk
Southern was precluded by the FRSA regulations and in
determining that questions of fact did not exist as to the
claims. See Hartry, 347 Ga.App. at 58-65.
granted certiorari and asked whether Hartry's FELA claim
is precluded by the regulations under FRSA. Norfolk Southern
argues that its duty was controlled by 49 CFR § 234.107,
promulgated by the FRA under FRSA, which lays out the actions
to be taken after a railway receives a "credible
report" of a crossing malfunction, and that because
there was no "credible report" as defined under
that regulation, Hartry's FELA claim was precluded. We
in 1908, FELA provides railroad employees with a federal
cause of action for injuries "resulting in whole or in
part from the negligence" of a railroad. 45 USC §
51. "Cognizant of the physical dangers of railroading
that resulted in the death or maiming of thousands of workers
every year, Congress crafted a federal remedy that shifted
part of the human overhead of doing business from employees
to their employers." (Citation and punctuation omitted.)
Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542
(II) (A) (114 S.Ct. 2396, 129 L.Ed.2d 427) (1994). "In
order to further FELA's humanitarian purposes, Congress
did away with several common-law tort defenses that had
effectively barred recovery by injured workers."
Id. What constitutes negligence under FELA is a
federal question governed by the provisions of the statute
and federal common law. See id. (b) FRSA
was enacted in 1970 "to promote safety in every area of
railroad operations and reduce railroad-related accidents and
incidents." 49 USC § 20101. FRSA grants the
Secretary of Transportation the authority to "prescribe
regulations and issue orders for every area of railroad
safety supplementing laws and regulations in effect on
October 16, 1970," 49 USC § 20103 (a), "which
laws include FELA." Norfolk Southern R. Co. v.
Zeagler, 293 Ga. 582, 598 (3) (748 S.E.2d 846) (2013).
The Secretary of Transportation has delegated this authority
to the FRA. See id.; Henderson v. Nat. R. Passenger
Corp., 87 F.Supp.3d 610, 613 (II) (A) (S.D.N.Y. 2015).
FRSA does not create a private right of action; enforcement
powers under ...