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Fair v. BNSF Railway Co.

California Court of Appeals, Fifth District

June 30, 2015

DELTON R. FAIR, Plaintiff and Respondent,
BNSF RAILWAY COMPANY, Defendant and Appellant.


APPEAL from a judgment of the Superior Court of Fresno County, No. 11CECG04269 M. Bruce Smith, Judge.

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Dowling Aaron, Steven M. Vartabedian; Flesher McKague, Jacob D. Flesher, Jason W. Schaff; BNSF Railway Company, Wayne L. Robbins, Jr.; Kelly Hart & Hallman and Marianne M. Auld for Defendant and Appellant.

Law Offices of Ruel Walker, W. Ruel Walker; Hildebrand, McLeod & Nelson, Anthony S. Petru and Kristoffer S. Mayfield for Plaintiff and Respondent.



Plaintiff Delton R. Fair was working on the railroad. After he injured his back and knee while trying to throw a switch, he brought this

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action against BNSF Railway Company (BNSF) under the Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq.), alleging that he was injured as a result of BNSF’s negligence. A jury found in Fair’s favor and awarded him a total of $3, 216, 000 in damages.

BNSF’s primary argument on appeal is that the Federal Railroad Safety Act of 1970 (FRSA) (49 U.S.C. § 20101 et seq.), and the regulations promulgated thereunder, preclude Fair’s FELA claim in its entirety. In support of its argument, BNSF relies on the authority of several federal appellate courts. Guided by recent court decisions that have reanalyzed the preclusion issue in light of the United States Supreme Court’s recent decision in POM Wonderful v. Coca-Cola Co. (2014) 573 U.S. ___ [189 L.Ed.2d 141, 134 S.Ct. 2228 (POM Wonderful), we reject BNSF’s argument, and instead conclude that FRSA and its regulations do not preclude federal claims under FELA. We reject BNSF’s other contentions in the unpublished portion of the opinion.


In the early hours of January 27, 2011, 46-year-old Fair was working as a “herder” in BNSF’s Fresno railroad yard, attaching together a group of locomotives. About 1:30 a.m., he injured his back when he tried to throw the 5176 switch;[1] pain immediately shot into his leg and up his back. When he tried to walk the pain off, his knees went out from under him; his left knee was injured when it hit what Fair believed was the edge of a railroad tie.

In December 2011, Fair brought this action for damages against BNSF under FELA. The case was tried to a jury in September 2013. The jury returned a special verdict finding BNSF negligently caused Fair’s injuries and awarded the following: (1) $236, 000 for past economic loss; (2) $1.5 million for future economic loss; (3) $300, 000 for future medical expenses; (4) $380, 000 for past noneconomic loss; and (5) $800, 000 for future noneconomic loss.

BNSF moved for a new trial, asserting, among other arguments, the same arguments it pursues in this appeal. The trial court denied the motion, and BNSF filed this timely appeal.

As necessary, other relevant facts are included in the discussion that follows.

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I. FELA Overview

While injured employees in California generally are entitled to workers’ compensation benefits regardless of whether the employer was at fault (Lab. Code, § 3200 et seq.), those benefits are not available to railroad employees who suffer on-the-job injuries. Instead, their right of recovery is governed by FELA, which permits recovery only if the employer acted negligently. (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 6 [1 Cal.Rptr.3d 412, 71 P.3d 770] (Lund); Bergman v. St. Louis Southwestern Ry. Co. (1982) 134 Cal.App.3d 696, 700-701 [185 Cal.Rptr. 150] [noting a railroad is not strictly liable for its employee’s injuries; instead, the employee must prove the employer was negligent].) A FELA action may be brought in either federal or state court. (Lund, supra, 31 Cal.4th at p. 6; see Kinsey v. Union Pacific Railroad Co. (2009) 178 Cal.App.4th 201, 204 [100 Cal.Rptr.3d 253].) "When, as here, a FELA action is brought in state court, state law governs procedural questions, while federal law governs substantive issues. (St. Louis Southwestern R. Co. v. Dickerson (1985) 470 U.S. 409, 411 [84 L.Ed.2d 303, 105 S.Ct. 1347].) State procedure does not apply, however, if it results in the denial of a federal right granted by Congress.” (Lund, supra, 31 Cal.4th at pp. 6-7.)

Under FELA, a railroad employee has the right to sue his or her employer for “such injury... resulting in whole or in part from the negligence” of the railroad or its employees. (45 U.S.C. § 51; see id., § 56; Woods v. Union Pacific Railroad Co. (2008) 162 Cal.App.4th 571, 577 [75 Cal.Rptr.3d 748] (Woods).) FELA was enacted “because the Congress was dissatisfied with the common-law duty of the master to his servant. [It] supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence.” (Rogers v. Missouri Pacific R. Co. (1957) 352 U.S. 500, 507 [1 L.Ed.2d 493, 77 S.Ct. 443], fn. omitted (Rogers).) “FELA imposes upon a railroad a continuing and nondelegable duty to use reasonable care to provide railroad employees a safe place to work.” (Woods, supra, 162 Cal.App.4th at p. 577.)

The standard under FELA is a relaxed one; to prove that a railroad breached its duty, a “plaintiff must show circumstances which a reasonable person would foresee as creating a potential for harm [and] then show that this breach played any part, even the slightest, in producing the injury.” (McGinn v. Burlington Northern Railroad Co. (7th Cir. 1996) 102 F.3d 295, 300, citation omitted.) "It is well established that the quantum of evidence required to establish liability in an FELA ...

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