A railroad may assert a valid contributory negligence defense to a claim that it breached its non-delegable duty of care under the FELA in a negligence action.1 However, the law restricts the type of evidence that supports such a defense. First and foremost, “[c]ontributory negligence may arise only from plaintiff’s own act or acts of negligence, not from knowingly taking on a risk inherent in the work environment or a risk created by defendant’s negligence.”2 In other words, defendant cannot blame the plaintiff for being injured due to defendant’s own negligence. The defendant then has the burden of proof to establish that plaintiff failed to exercise reasonable care when discharging his job duties.3

In the absence of such proof, any suggestion that plaintiff was “empowered” must be excluded, as “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” It is anticipated that the defendants will argue the plaintiff’s alleged failure to invoke this “empowerment” rule at the time of his accident is evidence of contributory negligence. However, well-established FELA law does not permit a railroad defendant to offer any such evidence or argument in an attempt to shield itself from liability. This is true because any reference to, or argument involving, such an “empowerment policy” constitutes an impermissible attempt to assert an assumption to risk defense—a liability concept which the FELA explicitly forbids.

Title 45 U.S.C. § 54 eliminates assumption of risk as a defense in FELA cases: In any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier; and no employee shall be held to have assumed the risks of his employment 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.4

Since Congress amended 45 U.S.C. § 54 in 1939, it has been well-settled that assumption of risk has not been available as a defense in any case arising under the FELA. In Tiller v. Atlantic Coastline R. Co., the Supreme Court held:

Every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment, and that Congress, by abolishing the defense of assumption of risk in that statute, did not mean to leave open the identical defense for the master by changing its name to “non-negligence.”5

Because the defense of assumption of risk has no place in a case arising under the FELA, trial courts must be vigilant in guarding against such defenses camouflaged as contributory negligence.6 Indeed, the Supreme Court has admonished the use of any evidence that in reality amounts to assumption of the risk since the defense: “must not…be allowed recrudescence under any other label in the common law lexicon.”7 Thus, a defendant railroad may not offer evidence of alleged contributory negligence claim that is, in fact, just evidence of assumption of the risk. 

Assumption of the risk is defined as “an employee’s voluntary, knowledgeable acceptance of a dangerous condition that is necessary for him to perform his duties.”8  Contributory negligence, on the other hand, is defined as “a careless act or omission on the plaintiff’s part tending to add new dangers to conditions that the employer negligently created or permitted to exist.”9 So a railroad may not argue that a plaintiff was contributorily negligent just because he reported to work, followed company procedures and directions in discharging his job, failed to refuse to perform his job, and was then injured. This argument is impermissible and amounts to “you should have stayed home and refused to come to work today.” Furthermore, for the plaintiff to have been contributorily negligent according to this definition, he must have added to the dangers of his workplace.

Under the FELA, a railroad has a non-delegable duty to provide its employees with a reasonably safe work place.10 Notably, the railroad employer is also directly responsible to the employee for injuries sustained on a third party’s property, even when the dangerous condition on that property existed solely due to the third party’s negligence.11 Because a railroad’s duty under the FELA is non-delegable, by definition, it may neither be delegated to a third party nor to the plaintiff.12

Any employee “empowerment” policy is nothing more than an attempt by the railroad to shift its non-delegable duty to plaintiff. Under such a program, the railroad requires the employee, rather than itself, to determine whether the work procedures, tools, premises, or the like, are reasonably safe before the employee performs his assigned work. Reference by railroad to its “empowerment rule” is only offered to support the allegation that the plaintiff failed to stop and refuse to engage in an unsafe task, which he should have realized was unsafe (because the railroad delegated that duty to him). This is an improper attempt to shift the non-delegable duty onto the plaintiff so that a railroad can argue that plaintiff was contributorily negligent by assuming the risk of his employment.

Moreover, any argument that a railroad worker is contributorily negligent because he or she failed to refuse to perform an assigned job ignores the reality of the work place, as recognized by the Eighth Circuit in Wilson v. Burlington Northern, Inc.13 In rejecting the railroad’s argument that the plaintiff was contributorily negligent because he performed a job without using safer equipment or without asking for additional help, the court made the following astute statement:

The railroad’s argument simply is not consistent with the realities of the workplace. Wilson was asked to help carry the pan. As was the custom of the Burlington Northern, he complied with the request. When a man’s assistance is needed and asked for, he helps—there is no choice involved.14

The Eighth Circuit is not alone in seeing through arguments that a railroad employee is negligent when he fails to refuse to perform work. The Third Circuit reached a similar conclusion when it held that the alternative of an employee quitting rather than performing an assigned job is not evidence of contributory negligence.15

Similarly, any argument that plaintiff violated a generic, self-serving safety rule is no defense to a FELA claim. The improper use of a general work rule in support of a contributory negligence defense was considered by the Tenth Circuit in Parra v. Atchison, Topeka v. Santa Fe Railway Co.16 Parra was injured when he performed his assigned job of dragging 300 pound railroad ties.17 The railroad offered into evidence its safety rule which stated: “Do not lift more than can be safely handled. When necessary, ask for help to lift heavy loads and avoid jerking or lifting from awkward positions. When lifting, have secure footing, bend knees and keep back straight, take firm hold of object and slowly straighten legs.” The railroad offered a jury instruction that read in part “[i]f you find that plaintiff violated an applicable safety rule of defendant and that this violation contributed in whole or in part to the accident, you may consider this violation as evidence of negligence on the part of the plaintiff.” The district court refused to give the instruction.

On appeal from a favorable verdict for the plaintiff, the railroad argued that the district court erred when it refused to instruct the jury that a violation of its safety rule was evidence of contributory negligence. In rejecting this, the Tenth Circuit stated:

The critical inquiry in such cases is whether the rule itself is of a specific nature allowing plaintiff’s actions to be evaluated objectively. In this instance, Rule 191 tells Mr. Parra that he should not lift more than can be lifted “safely”. This is a good admonition but it is nothing more than that and it provides no standard which a jury could apply. The evidence only affords defendant an instruction of the law of plaintiff’s negligence as was given in this instance. The trial court properly denied the requested instruction.18

The very same reasoning applies here. The railroad may not rely on any general safety rules telling employees they are “empowered” to take over the railroad’s and property owner’s non-delegable duty.  Nor can the railroad rely on its safety rule book to shift their duties onto the shoulders of plaintiff by arguing that a violation of any one of the railroad’s hundreds of general, self-serving rules supports a contributory negligence defense.

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