One prominent memory from my One-L torts class is the professor telling us “the railroad always wins.” This was his tongue-in-cheek summary of ancient cases we were studying which involved tort/negligence lawsuits by injured persons against railroads. The explanation for what seemed like overwhelmingly railroad-friendly results in these cases was that the perception of a railroad-hostile judiciary, and/or the costs arising from plaintiff verdicts, might stifle the then-nascent industry.
One example of the railroad not winning – at least at the summary judgement stage – is Stephney v. MTA Metro-N. R.R., 2019 NY Slip Op 05004 (App. Div. 1st Dept. June 20, 2019). The plaintiff in that case is an assistant conductor who was physically attacked by a passenger while seeking to collect her fare.
She sued under the Federal Employers’ Liability Act (FELA), 45 USC § 51 et seq., which as summarized by the court “provides that operators of interstate railroads shall be liable to their employees for on-the-job injuries resulting from the railroad’s negligence.”
The court explained the legal standard:
In an action under FELA, “the plaintiff must prove the traditional common-law elements of negligence: duty, breach, damages, causation and foreseeability” (Hyatt v Metro-North Commuter R.R., 16 AD3d 218, 218 [1st Dept 2005]). However, these elements are “substantially relaxed” and “negligence is liberally construed to effectuate the statute’s broadly remedial intended function” (id. at 218-219; see also Foster v Port Auth. of N.Y. & N.J., 154 AD3d 543, 544 [1st Dept 2017]). A claim under FELA “must be determined by the jury if there is any question as to whether employer negligence played a part, however small, in producing plaintiff’s injury” (Hairston v Metro-North Commuter R.R., 2 AD3d 127, 128 [1st Dept 2003]). “A case is deemed unworthy of submission to a jury only if evidence of negligence is so thin that on a judicial appraisal, the only conclusion that could be drawn is that negligence by the employer could have played no part in an employee’s injury” (Pidgeon v Metro-North Commuter R.R., 248 AD2d 318, 319 [1st Dept 1998]).
To establish the element of foreseeability, a plaintiff must show that the defendant had either actual or constructive notice of the defective condition (id.). However, notice generally presents an issue of fact for the jury (Hyatt, 16 AD3d at 219). “As with all issues under FELA, the right of the jury to pass on this issue must be liberally construed, with the jury’s power to draw inferences greater than in a common-law action”
Here, held the court, “there is sufficient evidence to raise an issue of fact concerning defendant’s actual or constructive notice of a risk of assault to conductors on the New Haven Line.” Specifically,
Plaintiff testified that she was previously assaulted by a passenger, and that there was an ongoing problem of physical intimidation by large groups of adolescents refusing to pay their fares, which caused her to fear for her safety. Plaintiff also testified that she has called the MTA’s rail traffic controllers for police assistance at least 250 times to deal with abusive passengers; another conductor was punched in the face and knocked out on the New Haven Line; a passenger attempted to stab and rob another conductor on the Harlem Line.
Based on this testimony, the First Department held that the lower court properly denied the defendant’s motion for summary judgment dismissing plaintiff’s complaint.