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Ries v. National R.R. Passenger Corp.

filed: March 31, 1992.


On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil Action No. 89-05176)

Before: Cowen, Nygaard and Garth, Circuit Judges

Author: Cowen


COWEN, Circuit Judge.

This appeal arises from a suit by Charles Ries against the National Railroad Passenger Corporation (Amtrak) for damages resulting from an injury to his ankle. This case involves a modest amount of money, but an important issue of law. Specifically, we are asked to consider whether a violation of an Occupational Safety and Health Act (OSHA) regulation establishes negligence per se and bars consideration of an employee's contributory negligence under the Federal Employers' Liability Act (FELA). Amtrak appeals from an adverse judgment in the district court. We will reverse.


On July 2, 1989, Charles Ries severely injured his right ankle at home, requiring an emergency trip to the hospital. He was discharged on crutches that same day for this non-work-related injury. Ries was employed as a machinist for Amtrak, and he reported to work on July 6, 1989 at Amtrak's main service building, which is adjacent to the 30th Street Station in Philadelphia. On the morning of July 6, Ries was descending a seven-step concrete stairway from a loading platform to the ground at the service building, when he slipped on the bottom step,*fn1 which was six inches off the ground, and turned his foot on a stone. The metal slip-resistant tread on the bottom step of the stairway was missing, the metal nosing had been chipped away, and the remaining concrete was deteriorated and rounded off three inches. In the course of his fall, Ries injured his right ankle -- the same ankle he had hurt four days earlier at home.

A subsequent x-ray revealed no break and an air cast was applied to his right ankle. The doctor who treated Ries later testified that, in his opinion, the ankle injury was "an aggravation of a preexisting calcaneal fracture." App. at 161 (emphasis added). Ries also suffered minor injuries to his right shoulder and lower back. He was unable to return to work until June 6, 1990, eleven months after the injury. Ries' injuries required fourteen visits to the doctor and thirty-five physical therapy treatments between July 1989 and January 1991.

Ries brought suit in federal district court under the FELA, 45 U.S.C. §§ 51-60 (1988). As evidence of Amtrak's negligence, he introduced over Amtrak's objection an administrative regulation promulgated under OSHA, 29 U.S.C. §§ 651-78 (1988). The regulation in existence at the time of Ries' fall provided the following specifications for fixed industrial stairs:

Stair treads. Tread and the top landing of a stairway, where risers are used, should have a nose which extends one-half inch to 1 inch beyond the face of the lower riser. Noses should have an even leading edge. All treads shall be reasonably slip-resistant and the nosings shall be of non-slip finish.

29 C.F.R. § 1910.24(f) (1990). No witness testified about the OSHA regulation, nor was there any evidence that Amtrak had been cited administratively for violating the regulation. However, the district court charged the jury that if this OSHA regulation was violated, Amtrak would be liable under the FELA, even if the violation of the regulation was only slightly responsible for Ries' injury. In other words, Amtrak's violation of the OSHA regulation would constitute negligence per se under the FELA. The district court also instructed the jury that Ries' contributory negligence would not bar a full recovery of damages if the regulation was violated.

The jury returned a verdict in favor of Ries for $37,130. Although the jury found Ries to be seventy-five percent responsible for injury and Amtrak only twenty-five percent responsible, Amtrak was required to pay not merely its share of the damages ($9,282.50) but the entire amount of the verdict, since the jury found that Amtrak had violated the OSHA regulation pertaining to stair treads. Amtrak appeals to this court under 28 U.S.C. § 1291 (1988).


Amtrak does not dispute its violation of the OSHA regulation pertaining to stair treads, nor does it dispute the admission of the OSHA violation as evidence of its negligence. Rather, Amtrak contests the district court's instructions that an employer's violation of an OSHA regulation constitutes negligence per se and bars contributory negligence under the FELA. To resolve this issue, we must first examine the scope of the FELA and OSHA, respectively. Then we will examine the interaction of the two statutes. Because this appeal involves the construction of federal statutes, our review is plenary. Dawson v. United States, 894 F.2d 70, 72 (3d Cir. 1990).


The Federal Employers' Liability Act was enacted in 1908*fn2 to address the growing number of work-related injuries in the railroad industry, which even today is one of the most dangerous industries in this country. Jerry J. Phillips, An Evaluation of the Federal Employers' Liability Act, 25 San Diego L. Rev. 49, 50-52 (1988). The FELA, like other industrial safety statutes, was an attempt to require the railroad industry to bear the costs for the inevitable deaths and injuries of employees which comprised the "human overhead" of business. Kernan v. American Dredging Co., 355 U.S. 426, 431, 2 L. Ed. 2d 382 , 78 S. Ct. 394 (1958). See also Wilkerson v. McCarthy, 336 U.S. 53, 68, 93 L. Ed. 497 , 69 S. Ct. 413 (1949) (Douglas, J., Concurring) ("The Federal Employers' Liability Act 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."). Congress intended to establish a dependable tort remedy for railroad workers which would not only compensate them for their injuries but also encourage safety within the industry. Phillips, supra, at 50-51. In enacting the FELA, "Congress intended the creation of no static remedy, but one which would be developed and enlarged to meet changing conditions and changing concepts of industry's duty toward its workers." Kernan, 355 U.S. at 432. See also Rogers v. Consolidated Rail Corp., 948 F.2d 858, 862 (2d Cir. 1991); Lewy v. Southern Pacific Transp. Co., 799 F.2d 1281, 1287-88 (9th Cir. 1986); Green v. River Terminal Ry. Co., 763 F.2d 805, 806 (6th Cir. 1985) (all suggesting liberal construction of the FELA in order to facilitate recovery).

Liability under the FELA is predicated on the negligence of the employer. Under traditional principles of tort law, "the unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself," or in more common usage, negligence per se.*fn3 Restatement (Second) of Torts, § 288B(1) (1965). As to the FELA, the Supreme Court has modified recovery by finding negligence per se if the statutory violation "contributes in fact to the death or injury in suit, without regard to whether the injury flowing from the breach was the injury the statute sought to prevent." Kernan, 355 U.S. at 433. If a statutory duty is violated by the employer, the employee will recover all of her damages under the FELA even though the employee is contributorily negligent:

No such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.

45 U.S.C. § 53 (emphasis added). The issue in this case, then, is whether an OSHA regulation is the type of safety statute whose violation would trigger the provisions of the FELA.

It is well-settled that the FELA requires a finding of negligence per se when there has been a violation of a safety statute specifically aimed at the railroad industry. See, e.g., Crane v. Cedar Rapids & Iowa City Ry. Co., 395 U.S. 164, 166, 23 L. Ed. 2d 176 , 89 S. Ct. 1706 (1969) (Safety Appliance Act); Urie v. Thompson, 337 U.S. 163, 188-89, 93 L. Ed. 1282 , 69 S. Ct. 1018 (1949) (Safety Appliance Act and Boiler Inspection Act); Seaboard Air Line Ry. Co. v. Horton, 233 U.S. 492, 503, 58 L. Ed. 1062 , 34 S. Ct. 635 (1914) (Safety Appliance Act and Hours of Service Act). What is less clear is whether the FELA applies when a general workplace safety statute such as OSHA is violated.

The outer bounds of FELA liability were examined by the Supreme Court in Kernan . In that case, a seaman was killed when his tug caught fire as a result of a kerosene lamp igniting inflammable vapors above the water. The lamp violated a Coast Guard regulation requiring that lamps be more than eight feet above the water. The issue was whether that violation could lead to negligence per se under the Jones Act, "which in terms incorporates the provisions of the FELA." Kernan, 355 U.S. at 431. Answering the question in the affirmative, the Court concluded that the FELA was not meant to apply to only the Safety Appliance and Boiler Inspection Acts:

The theory of the FELA is that where the employer's conduct falls short of the high standard required of him by this Act, and his fault, in whole or in part, causes injury, liability ensues. And this result follows whether the fault is a violation of a statutory duty or the more general duty of acting with care.

Id. at 438-39.

This court's previous decisions have broadly construed other provisions of the FELA. We recently noted that "recompense for industrial injuries such as those suffered by plaintiff here should not have to depend on the vagaries of a statute such as the Safety Appliance Act or FELA." Reed v. Philadelphia Bethlehem & New England R.R. Co., 939 F.2d 128, 132 (3d Cir. 1991). However, we have not hesitated to reject claims of injured railroad employees when their claims were not clearly within the scope of the FELA. See Felton v. Southeastern Pennsylvania Transp. Auth., 952 F.2d 59, 66 (3d Cir. 1991) (urban subway is not interstate common carrier under the FELA); Holliday v. Consolidated Rail Corp., 914 F.2d 421, 426 (3d Cir. 1990), cert. denied, 112 L. Ed. 2d 1057, 111 S. Ct. 970 (1991) (work-related stress did not constitute injury under the ...

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