STEPHEN TURNER PLAINTIFF RESPONDENT v. APPEAL NO (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the amended judgment so appealed from is unanimously affirmed without costs.

Memorandum:  Defendants appeal from an amended judgment awarding plaintiff damages for injuries he sustained as a result of the excessive lateral motion of the locomotive that he was operating on September 5, 2003, during the course of his employment by defendant CSX Transportation, Inc. (CSX).  Contrary to defendants' contention, we conclude that Supreme Court properly granted those parts of plaintiff's cross motion for partial summary judgment on the issue of CSX's negligence under the Federal Employers' Liability Act ( [FELA] 45 USC § 51 et seq.) and the Federal Locomotive Inspection Act ( [LIA] 49 USC § 20701 et seq.) with respect to the two causes of action seeking damages for the injuries plaintiff sustained on September 5, 2003.   Plaintiff established in support of his cross motion that he was violently thrown about the interior of the locomotive as a result of the excessive lateral motion of the locomotive, and we thus conclude that plaintiff met his initial burden of establishing as a matter of law that CSX violated its duty pursuant to the LIA “to keep all the parts and appurtenances of [its] locomotives in proper condition and safe to operate without unnecessary peril to life or limb” (Mosco v. Baltimore & Ohio R.R., 817 F.2d 1088, 1091, cert denied 484 U.S. 851;  see King v. Southern Pac. Transp.  Co., 855 F.2d 1485, 1489).   A violation of the LIA establishes “negligence per se under the FELA” (Coffey v Northeast Ill. Regional Commuter R.R. Corp. [Metra], 479 F3d 472, 477;  see Urie v. Thompson, 337 U.S. 163, 189).   Defendants failed to raise a triable issue of fact concerning the condition of the locomotive when plaintiff experienced the excessive lateral motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).

We further conclude that the court properly refused to use defendants' proposed jury instructions and verdict sheet with respect to apportionment.   Even assuming, arguendo, that a jury may apportion a plaintiff's damages between a preexisting condition and the aggravation of that condition caused by a railroad's negligence (see e.g. Sauer v. Burlington N. R.R. Co., 106 F3d 1490, 1494;  Stevens v Bangor & Aroostook R.R. Co., 97 F3d 594, 596, 601-603;  cf.  Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 159-160), we conclude that the court's “instructions made it clear to the jury that [plaintiff] was entitled to recover only for those injuries that were caused by defendants' negligence” (Kirschhoffer v. Van Dyke, 173 A.D.2d 7, 9;  see PJI 2:282;  cf.  Wylie v. Consolidated Rail Corp., 261 A.D.2d 955, lv denied 93 N.Y.2d 816).   Further, the instructions, as a whole, “ ‘adequately conveyed the sum and substance of the applicable law’ “ (Ellis v. Borzilleri, 41 AD3d 1170, 1171).

Finally, we reject defendants' contention that we should revisit our recent decision in Canazzi v. CSX Transp., Inc. ( [appeal No. 2] 61 AD3d 1347) and change the standard of causation used in FELA actions.   As we concluded in Canazzi, “[p]ursuant to [the] FELA, the issue of causation turns on whether [a] defendant's negligence played any part, even the slightest, in contributing to [a plaintiff's] injury” (id. at 1348 [internal quotation marks omitted] ).   That language is taken in part from the United States Supreme Court's decision in Rogers v. Missouri Pac. R.R. Co. (352 U.S. 500, 506), and it has been used repeatedly by the courts of this State (see e.g. Sneddon v. CSX Transp., 46 AD3d 1345, 1346;  Robinson v. CSX Transp., 40 AD3d 1384, 1386, lv denied 9 NY3d 815).

Patricia L. Morgan

Clerk of the Court