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Home > Professional Resources > Sections > Railroad Law > Railroad Law Newsletters > Railroad Law Section Newsletter Spring 2012 > Insufficiency: A Lost Vestige of the FELA Applicable When Railroads Move to Exclude Safer Alternative Methods
By James (Jamie) R. Holland, Jacksonville, FL
Since the passage of the Federal Employers’ Liability Act (FELA) over a century ago, the U.S. Supreme Court, the Court of Appeals for every federal circuit in United States, and virtually every state court at every appellate level, has repeatedly interpreted the statute. In all that interpretation, a portion of the statute has been lost and forgotten.
We have reduced the broadly encompassing scope of the FELA to the railroad’s duty to provide a “reasonably safe place to work.” The duty originally set forth in the statute was broader than merely safe. Importantly, the duty included sufficiency as well as safety.
The lost vestige of sufficiency allowed the creation of novel railroad defenses. These defenses are direct contradictions to the broad humanitarian purpose of the FELA. It is routinely recognized that the purpose of the act was to put the cost of human overhead onto the railroad. That purpose is not limited to mere safety, but also sufficiency. In the terms of the original 40 U.S.C. § 1, liability is triggered “by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”1
The best example of an affirmative defense, which is contrary to the purpose of the FELA, is the “safer alternative measure” defense. This defense was created by illogical interpretations of Stillman v. Norfolk and Western.2 In Stillman, a shop craft worker was injured attempting to lift a heavy gear with a forklift and chain. When the gear slipped causing him injury, the worker filed suit under the FELA alleging a failure to provide a reasonably safe place to work. At trial, the worker argued an overhead crane would have made the workplace safer and limited the argument to the issue of “safety,” rather than sufficiency. Such a limited approach led to the Fourth Circuit to state that the core issue under the FELA was whether the railroad provided a safe place to work, not whether alternative measures could provide a safer place to work.
Actually, the Fourth Circuit decision was a weak affirmance of the trial court’s exclusion of alternative methods. It is clear from a careful reading of the case that the trial court admitted the evidence of the safer overhead crane. In any event, Stillman introduced essentially all of the testimony concerning the alternative gear installation method that he wished to offer.3 Essentially, the Fourth circuit stated that sustaining the railroad’s objection to this evidence was harmless error. However, the dicta of the decision that the railroad’s duty was limited to providing a safe place to work and not expanded to safer alternatives led railroad defense counsel to extrapolate the “safer alternative measure” defense that is raised constantly in FELA trials.
It is clear that the safer alternative measure defense has no place under the FELA. In Stone v. New York, Chicago, & St. Louis Railroad Co., the U.S. Supreme Court held that juries in FELA cases should learn of alternative ways of performing work.4 The plaintiff, a railroad maintenance worker, injured his back while removing worn out track ties. Two men hoisted ties using tongs and three or four men accomplished the task if spikes protruded through the tie into the ground. The Supreme Court noted that there were “three alternative ways” to remove the tie. Nevertheless, the plaintiff’s supervisor instructed him to use only the first method.
The Supreme Court characterized the case as “peculiarly one for the jury,” and held that the jury should hear evidence of alternative methods to determine whether the railroad was reasonable. The Court observed:
The experience with stubborn ties, the alternative ways of removing them, the warning by [the plaintiff] that he had been pulling as hard as he could, the command of his superior to pull harder, the fact that more than two members were usually used in these circumstances—all these facts comprised the situation to be appraised in determining whether [the railroad] was negligent. Those circumstances were for the trier of fact to appraise.5
Courts have frequently applied Stone’s guiding principle to subsequent FELA litigation.6 Many other courts have followed the reasoning in Stone reasoning and permitted evidence of alternative tools and work methods.7
Nevertheless railroads continue to persist and have met with success by arguing Stillman v. Norfolk and Western Ry. Co. requires that safer alternative measures should be categorically excluded from evidence—based only on a “harmless error” weak affirmance.8 Unfortunately, the evidentiary battle wages on when it could have been avoided altogether by seeking better ground on which to make a stand. That ground is insufficiency, which is explicitly provided for by Congress in 45 U.S.C. § 51.
Under 45 U.S.C. § 51, the railroad is required to provide sufficient equipment. Sufficient equipment is measure by determining whether the tool meets the task. If the tool is up to the task, it is sufficient and if it falls short, it is insufficient. The gap between the tool and the task is best demonstrated by offering tools in which there is no gap. Sufficiency avoids the entire safety argument. A tool or equipment may be safe but still trigger liability under the FELA if it is insufficient. Tools may be perfectly safe for one task but woefully insufficient for another. Alternative tools and work methods sufficient to the task best demonstrate the sufficiency deficits.
The “sufficiency” argument, while largely lost in the FELA, should never be forgotten. In every FELA complaint, insufficiency should be introduced as a parallel theory to safety. Liability ensues under either alternative as “insufficiency” is a separate clause.9 If a workplace is supposedly safe, but insufficient, the railroad is liable. If the workplace is “sufficient,” but unsafe, the railroad is liable. Either path may lead to the ultimate goal, recovery and compensation for the injured railroad worker.