Higdon v. Keolis Commuter Servs., LLC

306 F.Supp.3d 470

Kimberly HIGDON, Plaintiff,

v.KEOLIS COMMUTER SERVICES, LLC, Defendant.

CIVIL ACTION NO. 16–11587–MBB

United States District Court, D. Massachusetts.

Filed January 29, 2018

Michael J. McDevitt, Joshua M.D. Segal, Laura Sawyer, Lawson & Weitzen, LLP, Boston, MA, for Plaintiff.

Edward P. Harrington, Boston, MA, for Defendant.

MEMORANDUM AND ORDER RE: MOTIONS IN LIMINE (DOCKET ENTRY ## 32, 40, 41)

BOWLER, U.S.M.J.

Pending before this court are the above motions in limine. (Docket Entry ## 32, 40, 41). The motions raise complicated issues of the application of an Occupation Health and Safety Act ("OSHA") negative preemption statute, 29 U.S.C. § 653(b)(1) (" section 653(b)(1)"); a comparative negligence bar under the Federal Employers' Liability Act ("FELA") when a safety statute applies, 45 U.S.C. § 53 (" section 53"); and the continued viability in certain respects of the First Circuit's decision in Pratico v. Portland Terminal Co. decision, 783 F.2d 255 (1st Cir. 1985) (" Pratico"). More specifically, the issues include: (1) whether to exclude the aisles and passageways OSHA regulation, 29 C.F.R. § 1910.22(b)(1) (2015), plaintiff Kimberly Higdon ("plaintiff") cites from evidence as subject to preemption under section 653(b)(1) ; (2) whether a violation of the regulation constitutes negligence per se or only evidence of negligence on the part of defendant Keolis Commuter Services, LLC ("Keolis"); and (3) whether the regulation is a safety statute under section 53 which precludes any reduction of a recovery based on plaintiff's negligence.

I. Section 653(b)(1) Bar

Turning to the first issue, the OSHA regulation applies only if OSHA's so-called "negative preemption" provision in section 653(b)(1) does not oust OSHA of its regulatory authority in the circumstances of this case. See Clark v. Providence and Worcester Railroad Co., Civil Action No. 09-10328-FDS, 2011 WL 3236087 (D. Mass. July 26, 2011).¹ Section 653(b)(1) provides that:

(b)(1) Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies ... exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

29 U.S.C. § 653. As explained by the First Circuit in PBR, Inc. v. Secretary of Labor, 643 F.2d 890 (1st Cir. 1981), the exemption in section 653 :

is activated by statutory authority in another agency and an actual exercise of such authority by the agency.

Southern Pacific Transportation Co. v. Usery, 539 F.2d 386, 389 (5th Cir. 1976). The exemption does not oust OSHA of its regulatory authority where such an agency has regulatory authority but has not exercised such authority.

PBR, Inc. v. Secretary of Labor, 643 F.2d 890, 896 (1st Cir. 1981). The twofold inquiry therefore requires: (1) the existence of statutory authority in another agency; and (2) the actual exercise of that authority by the agency. Id.

As to the first line of inquiry, Keolis aptly points out that the Federal Railway Safety Act, 49 U.S.C. §§ 20101 – 21311, endowed the Department of Transportation, acting through the Federal Railroad Administration ("FRA"), with broad powers to " ‘prescribe regulations and issue orders for every area of railroad safety.’ " (Docket Entry # 40) (quoting 49 U.S.C. § 20103 ). Moreover, as stated in a decision by the Occupational Safety Health Review Commission, "There is no doubt that the FRA has the statutory authority to regulate the safety of employees in the railroad industry." Sec. of Labor v. Consolidated Rail Corp., 10 O.S.H. Cas. (BNA) ¶ 1577 (O.S.H.R.C. Apr. 30, 1982) (" Conrail"); see 49 U.S.C. § 20101. Keolis is therefore correct.

The second aspect of the inquiry turns upon the existence of the "actual exercise of" FRA's authority. PBR, Inc., 643 F.2d at 896. Keolis submits that a 1978 policy statement (Docket Entry # 40–2) which, to quote the statement, concerns "the relationship between the respective jurisdictions of FRA and OSHA," 43 Fed. Reg. 10584 (March 14, 1978), is an actual exercise of FRA's authority. (Docket Entry # 40). Plaintiff maintains that the policy statement was not an exercise of FRA's authority and, relying on Pratico, 783 F.2d at 262, notes there is no FRA regulation "addressing safety on the aisles and passageways around trains in a coach house." (Docket Entry # 49, p. 2) (Docket Entry # 32, p. 2).

Overall, the policy statement provides that OSHA regulations apply subject to "three principal exceptions." 43 Federal Registrar 10587 (March 14, 1978). In pertinent part, the policy statement states that:

OSHA regulations concerning working surfaces deal with such matters as ladders, stairways, platforms, scaffolds and floor openings. Generally, these regulations are applicable in railroad offices, shops, and other fixed work places. There are however three principal exceptions to the rule.

43 Fed. Reg. 10587 (emphasis added). Keolis relies on two of these "three principal exceptions" to the applicability of the OSHA aisles and passageways regulation. (Docket Entry # 40).

A. Rolling Stock Exception

First, Keolis cites the exception applicable to "the safe movement of rolling stock through railroad repair shops." 43 Fed. Reg. 10587. The applicable language in the policy statement provides that:

... [A]s the agency which has exercised jurisdiction over railroad operations, FRA is responsible for the safe movement of rolling stock through railroad repair shops. OSHA requirements for general industry are in some respects inconsistent with the optimum safety of employees in this unique environment where hazards from moving equipment predominate. Therefore, OSHA regulations on guarding of open pits, ditches, etc., would not apply to inspection pits in locomotive or car repair facilities. FRA is better equipped to assess proper clearance technology and employee knowledge of existing industry practices as well as the relevance and severity of hazards represented by specific injury occurrence codes in accident/incident reporting statistics. FRA is responsible for determining what additional regulatory steps, if any, may be necessary in this area in light of overall safety considerations.

43 Fed. Reg. 10587.

The Occupational Safety Health Review Commission in Conrail determined that the FRA policy statement is an exercise of FRA's statutory authority over open pits and platforms in railroad repair facilities. See Consolidated Rail Corp., 10 O.S.H. Cas. (BNA) ¶ 1577 (O.S.H.R.C. Apr. 30, 1982) (quoting the policy statement's "rolling stock" and "walkways beside the tracks" exceptions). As stated in Conrail:

In issuing the policy statement, the FRA exercised its statutory authority over the cited working conditions, which concern the "movement of rolling stock through repair shops" and "the guarding of open pits ... in repair facilities" in the railroad industry. Such an exercise preempts OSHA from enforcing its standards with respect to working conditions to which the FRA has said OSHA standards should not apply.

Id. (quoting policy statement, 43 Fed. Reg. 10587 ).

It is true that the Pratico decision found no preemption of OSHA regulations applicable to a jack, 29 C.F.R. §§ 1910.241(d), 1910.244, due to the absence of FRA regulations regulating the working condition at issue. See Pratico, 783 F.2d at 262 ("review of these regulations reveals ... no regulations covering the procedure and equipment to be used," i.e., a jack, to lift "brasses"). Here, the issue is one of scope as to whether the "rolling stock" exception in the policy statement extends to the working condition at issue in this case. Contrary to plaintiff's position that a FRA regulation specific to aisles and passageways is required (Docket Entry # 32, p. 2), the absence of a FRA regulation specific to open pits and platforms in Conrail did not prevent the policy statement from constituting an exercise of statutory authority under section 653(b)(1). The Commission rejected the viewpoint that the absence of a regulation equates to an absence of the exercise of statutory authority:

Specifically, the FRA, as the experienced and expert agency in railroad safety matters, determined that the hazard of open pits and platforms in railroad repair facilities should go unregulated ... "Furthermore, as the dominant agency in its limited area, the FRA can displace OSHA regulations by articulating a formal position that a given working condition should go unregulated or that certain regulations—and no others—should apply to a defined subject." This is precisely what the FRA has done through its policy statement: articulated a formal position that certain working conditions in the railroad industry should go unregulated.

Consolidated Rail Corp., 10 O.S.H. Cas. (BNA) ¶ 1577 (O.S.H.R.C. Apr. 30, 1982) (quoting Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976) ) (emphasis added).

A more recent decision by the Occupational Safety Health Review Commission in 1993 after Pratico reiterates a similar effect and reach of the exemptions in the policy statement:

The FRA's exercise of regulatory authority is in the form of a statement of policy ... In order to give formal notice of the policy, the FRA published this statement in the Federal Register. 43 Fed. Reg. 10583 (1978). Thereby, "as the dominant agency in its limited area, the FRA [could] displace OSHA regulations by articulating a formal position that a given working condition should go unregulated [by a federal standard]....." See Southern Pacific Transp. Co. v. Usery, 539 F.2d 386, 391–92 (5th Cir. 1976), cert. denied, 434 U.S. 874 [98 S.Ct. 221, 54 L.Ed.2d 154] (1977) (" Southern Pacific") (positing that another agency can preempt OSHA regulations by formally deciding against issuing any standard or regulation); Velasquez v. So. Pacific Transp. Co., 734 F.2d 216 (5th Cir. 1984) (treating the FRA policy statement as an exercise of statutory authority); see also, In Re: Inspection of Norfolk

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