Smith v. CSX Transp., Inc.

325 Ga.App. 314

751 S.E.2d 604

SMITH

v.CSX TRANSPORTATION, INC.

No. A13A1504.

Court of Appeals of Georgia.

Nov. 21, 2013.

Reconsideration Denied Dec. 9, 2013.

Certiorari Denied May 5, 2014.

Michael J. Warshauer, Douglas Campbell Dumont, Atlanta, for Appellant.

Casey Gilson, James Edwin Gilson, Karen Rebecca Dunbar, Hall, Bloch, Garland & Meyer, Daryl Glenn Clarida, Atlanta, for Appellee.

BRANCH, Judge.

Larry G. Smith suffered a knee injury when he slipped and fell while ascending a set of stairs at a facility owned and operated by his then-employer, CSX Transportation, Inc. (“CSX”). Smith subsequently filed suit against the railroad seeking to recover for the injuries he sustained as a result of his accident. The case went to trial and the jury returned a verdict in favor of CSX. The trial court entered judgment on that verdict and Smith now appeals,¹ asserting that the trial court erred in allowing CSX to introduce evidence of his employment disciplinary record. For reasons explained below, we find no error and affirm.

The record shows that on April 6, 2004, Smith was in the administrative building at the CSX facility in Walbridge, Ohio, to attend a meeting of the local safety committee. Smith was attending this meeting in his capacity as a local chairman of the United Transportation Union (“UTU”).² After he entered the building, Smith went into the men's restroom on the first floor and then into the union office, which was also located on the first floor. When Smith left the union office, he began to proceed to the safety meeting, being held on the building's second floor. As he began to ascend the stairs, Smith placed his left foot on the second step and slipped and fell, injuring his left knee. An inspection conducted immediately after Smith's fall revealed that there was small circle of soap, approximately one inch in diameter, on the second step. Soap had also been “tracked” onto the third step, and there was soap on the bottom of Smith's left work boot. This soap was the same kind that was used in the building's restrooms.

Smith filed suit against CSX under the Federal Employers' Liability Act (“FELA”), 45 USC § 51 et seq., which “provides a federal tort remedy for railroad employees injured on the job, [while] working within the scope of their employment.” (Footnote omitted.) Zeagler v. Norfolk Southern R. Co., 317 Ga.App. 302, 303, 730 S.E.2d 657 (2012). “Activities within the scope of employment include those that are necessarily incidental to the employment, even if the employee is off duty, but not those undertaken for a private purpose and having no causal relationship with the employment.” (Footnote omitted.) Smith I, 306 Ga.App. at 898, 703 S.E.2d 671. See also Fowler v. Seaboard Coastline R. Co., 638 F.2d 17, 20 (5th Cir.1981) (“the proper test for scope of employment in [a] FELA case [is] whether the act was one which the employer might reasonably have foreseen and which the employee might reasonably have thought necessary in the interest of or in the benefit of the employer”). To prevail on his FELA claim, Smith was required to prove “that he was protected by FELA at the time of injury; that CSX was negligent in that it breached its duty to exercise reasonable care under the circumstances to provide Smith a reasonably safe place in which to work; and that CSX's negligence played some part in Smith's injury.” (Footnote omitted.) Smith I, 306 Ga.App. at 898–899, 703 S.E.2d 671.

Smith's theory of liability was that a CSX employee had dripped or spilled soap on the stairs, most likely while transporting soap to the building's second floor restrooms. In support of this theory, Smith presented evidence showing that the building's janitorial closet was located on the first floor and that to get soap to the second floor restrooms the soap would have to be carried up the stairway on which he fell. CSX disputed this theory and introduced evidence showing that the staircase had been mopped the day before Smith's fall sometime between 4:00–5:00 p.m.; that CSX employees had ascended and descended the stairs beginning at approximately 6:30 a.m. on the morning Smith fell and that none of them had reported seeing any soap on the stairs; and that the step on which Smith slipped was the only step on which any alleged accumulation of soap appeared. The railroad also introduced testimony showing that open soap containers were never carried up and down the stairs. Rather, the soap came in bags encased in cardboard containers and these containers were placed into the soap dispensers. Thus, the soap dispensers were refilled by taking out the empty box and replacing it with a new box. CSX argued that these facts failed to show any negligence on its part.

CSX also disputed that Smith was acting within the scope of his employment at the time of his injury, because hours before Smith's fall he had been placed “out of service” for a safety violation. CSX introduced the testimony of Jim Horner and Justin Forro, two CSX supervisors who were conducting operational testing at several CSX facilities during the early morning hours of April 6, 2004. These tests involved observing employees as they were working to ensure that they were complying with the railroad's safety rules. While at the rail yard in Wixom, Ohio, Forro and Horner observed Smith dismounting a moving locomotive, in violation of a safety rule. Horner immediately called Smith over for a conversation and informed him that he was “up for dismissal” and that he was being placed out of service. An out-of-service status means that an employee is relieved of his job duties until further notice and during the time an employee is out of service, he is not to be on CSX property for any reason without permission. After informing Smith he had been placed out of service, Horner and Forro escorted Smith to his car to ensure that he left the property. According to Forro, such an escort would be common under the circumstances to make sure that the employee in question did not “have a mishap. I mean ... you know, if you're up for dismissal, you start grasping at straws sometimes.”

At 4:56 a.m. on April 6, 2004, Forro sent an e-mail informing crew management that Smith was out of service and should not be called in to work. Additionally, the CSX computers were updated to reflect Smith's out-of-service status. When asked if Smith's out-of-service status was made clear to Smith before he left the rail yard, both Forro and Horner testified that it was, with Forro explaining that Smith “was very aware of [his out-of-service status]. I mean, you don't normally get escorted out of the building” by a supervisor.

Smith disputed the assertion that he had been placed out of service in the early morning hours of April 6 or that he had been informed of this alleged change in his employment status prior to the time he arrived at the Walbridge facility for the safety committee meeting. Although Smith acknowledged that Forro and Horner had spoken with him after observing his safety violation, Smith claimed the supervisors told him they would contact him the next day to discuss the matter.

Prior to trial, Smith filed a motion in limine seeking to exclude any evidence of his prior disciplinary record at the railroad. CSX opposed this motion, arguing that Smith's history of disciplinary problems and the fact that as a result of his prior disciplinary record he was “up for dismissal” following his latest safety violation was relevant to Smith's claim for lost future wages. CSX also claimed that this evidence was relevant to the defense theory that, fearing he was about to be fired for his latest safety violation, Smith planted the soap on the steps and staged his accident. On the morning trial began, the court ruled that limited evidence of Smith's disciplinary record would be allowed. Specifically, the court allowed CSX to introduce the fact that Smith had been disciplined in the past, the dates the discipline was imposed, and the sanction imposed on him as a result of each disciplinary action; the court did not allow the railroad to introduce the reason underlying any prior disciplinary action taken against Smith. The trial court found that this evidence was relevant because it could “be used by the jury to evaluate what [Smith's] future earning capacity with [CSX] or any other railroad might have been.” ³

On cross-examination, CSX asked Smith if he recalled receiving eight different disciplinary sanctions between May 1994 and October 2003.⁴ Smith denied any recollection of four of the first five incidents, testifying that he remembered only that he “was suspended a couple of times, went through the appeals process and got the [suspension] time erased and everything.” With respect to the disciplinary action that resulted in Smith being suspended for thirty days in June 1998, Smith testified that he remembered being suspended that year, but that the suspension was overturned through the appeals process. Smith also acknowledged that he could recall receiving disciplinary suspensions in April, May, and October of 2003.

On appeal, Smith contends that the trial court erred in allowing this evidence concerning his disciplinary record because it was irrelevant to the issue of liability or damages and that it was highly prejudicial. We disagree.

A trial court's ruling that evidence is relevant “will not be reversed absent abuse of discretion.” Ga. Dept. of Corrections v. Couch, 312 Ga.App. 544, 549(3), 718 S.E.2d 875 (2011). “This is so because trial courts, unlike appellate courts, are familiar with a piece of litigation from its inception, hear first-hand the arguments of counsel, and consider disputed evidence within the context of an entire proceeding.” (Citation omitted.) A.A.L., Inc. v. Colonial Pipeline Co., 280 Ga.App. 237, 238(1), 633 S.E.2d 560 (2006). Thus, as an appellate court we “defer to the trial court with regard to the admission of evidence, unless the lower court...