Hartry v. Ron Johnson Jr. Enters., Inc.

347 Ga.App. 55

815 S.E.2d 611

HARTRY et al.

v.RON JOHNSON JR. ENTERPRISES, INC. et al.; and vice versa.

A18A0314, A18A0315

Court of Appeals of Georgia.

Decided June 26, 2018

Reconsideration Denied July 17, 2018

Certiorari Granted April 29, 2019

Warshauer Law Group, Atlanta, Michael J. Warshauer, Trent S. Shuping, for Hartry et al.

Carlock Copeland & Stair, Richard C. Foster, Elizabeth L. Bentley ; Bondurant Mixson & Elmore, Frank M. Lowrey IV, Michael R. Baumrind ; Hall Bloch Garland & Meyer, Eileen M. Crowley, Amanda R. Smith ; Holland & Knight, Laurie W. Daniel, Matthew D. Friedlander, Atlanta, for Ron Johnson Jr., Enterprises, Inc. et al.

Hunter Maclean Exley & Dunn, Brunswick, Christopher R. Jordan, amicus curiae.

Doyle, Presiding Judge.

These appeals arise from a collision between a train, operated by Winford Hartry, and a tractor-trailer truck, owned by Ron Johnson Jr. Enterprises, Inc. ("Johnson"), after its truck driver drove through a railroad grade crossing while the crossing's warning arms were down. Hartry and his wife sued Johnson, alleging claims of negligence, loss of consortium, bad faith, and punitive damages, and they brought claims against Norfolk Southern Railway Company ("NS") under the Federal Employers’ Liability Act ("FELA").¹ The Hartrys’ complaint raised several FELA violations, but they eventually withdrew all but their claim that NS was responsible for maintaining the crossing gates, which dangerously malfunctioned, resulting in NS's failure to provide Hartry with a reasonably safe place to work.

NS moved for summary judgment, which the trial court granted on the basis that Hartry's FELA claim was precluded by regulations² promulgated under the Federal Railroad Safety Act ("FRSA")³ by the Federal Railroad Authority ("FRA"). Thereafter, the case proceeded to a jury trial in which the jury returned a verdict for the Hartrys.

In Case No. A18A0314, the Hartrys appeal, arguing that the trial court erred by (1) granting summary judgment to NS after determining that his FELA claim was precluded by FRA regulations and that no question of fact existed as to whether NS had notice of a gate malfunction; and (2) failing to give requested jury instructions informing the jury that Johnson had the burden of proof for its affirmative defense of mitigation of damages. In Case No. A18A0315, Johnson appeals, arguing that the trial court erred by (3) granting the Hartrys’ motion to exclude certain expert testimony; (4) granting the Hartrys’ motion for a directed verdict as to Johnson's breach of duty; and (5) prohibiting apportionment of fault to NS under OCGA § 51-12-33. For the reasons that follow, we reverse the trial court's grant of summary judgment to NS and directed verdict as to Johnson.

The record shows that on June 16, 2010, crossing gates were down at a public railway-roadway crossing, which position normally indicates that a train is approaching the crossing; occasionally gates will be down if a railway is performing maintenance or if they are malfunctioning.⁴ As Johnson approached the railroad crossing driving his 28-foot-long truck with attached dumpster, he saw that the gates were down but cars were driving around the gates and over the crossing. Johnson followed suit, driving around the crossing gates into the path of an oncoming train on which Hartry was serving as engineer. Hartry was injured as a result of the collision.

Witnesses in the area averred that the crossing gates were down by at least 9:00 a.m. on June 15, 2010 (the day before the accident), and because they were down without trains crossing, drivers were traversing the crossing despite the gates being down. A delivery driver averred that he had traversed the crossing at least 15 to 20 times over the course of June 15 and 16 while the gates were down and prior to the accident. Johnson had traversed the crossing in spite of the warning gates being down a number of times since 4:00 p.m. on June 15 without incident.

NS employees also worked in the area of the crossing on two occasions during the day on June 15 and were in the vicinity for several other hours of the day during which other witnesses testified that the gates were staying down and signaling without trains actually approaching during that time. The employees contended, however, that they did not witness any malfunctions.

Case No. A18A0314

1. The Hartrys and Johnson argue that the trial court erred by granting summary judgment to NS after determining that Hartry's FELA claims are precluded by the FRA regulations promulgated under the FRSA and because questions of fact exist as to whether NS had notice of the alleged gate malfunction.

(a) Motion to dismiss the appeal . As an initial matter, NS argues that the Hartrys’ appeal from the trial court's grant of summary judgment as to NS should be dismissed because the Hartrys failed to appeal the order at the time it was entered, or alternatively, because the Hartrys’ notice of appeal failed to indicate that they appealed from the summary judgment order. We disagree.

(i) Timeliness of the appeal . The Georgia Supreme Court has held that

[t]he party against whom summary judgment was granted may appeal either after the grant of summary judgment or after the rendition of the final judgment. Therefore, when the losing party appeals after the rendition of the final judgment, the grant of summary judgment is still subject to appellate review.⁵

NS, however, argues that under Uniform Superior Court Rule ("USCR") 19.1 (C), this rule does not apply because after a case is transferred to another superior court,

[i]f the basis of the motion is that a party necessary to the court's jurisdiction has been dismissed during or at the conclusion of the trial, the motion shall be made immediately and orally; any opposition shall be made orally. Should the motion to transfer be granted as to the remaining parties the claim against the party dismissed shall be severed, so that the order of dismissal will be final for purposes of appeal.⁶

We do not read this rule as requiring a party to appeal immediately from a grant of summary judgment as to one party or risk losing the right to appeal, merely that a party could appeal from such an order at that time. In fact, USCR 19.1 (I) states that after transfer, "[t]he action thereafter shall continue in the transferee court as though initially commenced there." And the transferee court has the power to review, vacate, or reissue "[a]ny interlocutory or other order theretofore entered in the action."⁷ Thus, the act of transferring the case did not require immediate appeal of the summary judgment order.⁸

(ii) Sufficiency of the notice of appeal . NS also argues that the Hartrys’ notice of

appeal precludes this Court from reaching the summary judgment order because the notice contains language limiting the orders appealed to the final judgment "plus other interlocutory orders and rulings that were not ripe for appeal until Final Judgment was entered." But this language actually is open ended and non-specific—the appellants did not list orders entered on particular dates or limit orders appealed based on the subject matter therein; therefore, we do not read it to preclude our review of the order.⁹

Accordingly, NS's motion to dismiss the appeal is hereby denied.

(b) Summary judgment . We now turn to the substance of the summary judgment motion. We agree with the Hartrys and Johnson that the trial court erred by determining that the Hartrys’ FELA claims against NS were precluded by the FRSA as implemented by the FRA in its regulations and by determining that questions of fact did not exist as to his claims.

[FELA] is a federal statute that gives a railroad employee the right to sue his employer in state or federal court for injury or death resulting in whole or in part from the railroad company's negligence [wherein] a plaintiff must "prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation."¹⁰

FELA "should be ‘liberally construed’ in favor of injured railroad employees in order to further its ‘remedial goal’ and ‘humanitarian purposes.’ "¹¹

Generally speaking,

[u]nder FELA, [a railroad company] has a duty to use reasonable care in furnishing its employees with a safe place to work. This duty requires the railroad to exercise the care that a reasonable and prudent person would exercise under the same circumstances. The carrier is required to take precautions commensurate with danger inherent in the situation and to exercise ordinary care proportionate to the consequences that might be reasonably anticipated from neglect. And what particular action a railroad should take to address a given workplace hazard is a question of whether the railroad breached the standard of care, which is a question for the jury.¹²

(i) FELA claim preclusion. Before the trial court, Hartry argued that NS had a duty under FELA to maintain the grade crossing, and its failure to do so resulted in his injuries. NS argued that its duty was controlled by 49 CFR § 234.107 promulgated by the FRA under the FRSA, which laid out the actions to be taken after a railway received a "credible report" of a crossing malfunction and that because there was no "credible report" of a crossing malfunction as defined under that regulation, Hartry's FELA claim was precluded. NS is correct that many state and federal courts previously had determined that claims brought pursuant to FELA were precluded by FRA regulations promulgated under FRSA.¹³ Indeed, our prior precedent held that a FELA "claim would be precluded if [a railway] established that a FRSA regulation or set of regulations ‘substantially subsume[d] the subject matter’ of the FELA claim."¹⁴

In POM Wonderful LLC v. Coca-Cola Co. ,¹⁵ the United States Supreme Court addressed the issue of claim preclusion in the face of two federal statutory schemes, noting that multiple tests had been employed by courts across the country to determine such a question.¹⁶ The...