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Norfolk Southern Railway Co. v. Hartry

Supreme Court of Georgia

December 23, 2019

NORFOLK SOUTHERN RAILWAY CO.
v.
HARTRY et al.

          Bethel, Justice.

         We 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.

         1. 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 as follows:

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).

         Hartry 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.

         Norfolk 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.

         Following 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.

         2. We 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 disagree.

         (a) FELA

         Enacted 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

         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 ...


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