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January 28, 1991


Appeals from the Superior Court of the District of Columbia; Hon. Paul R. Webber III, Trial Judge

Rogers, Chief Judge, and Steadman and Farrell, Associate Judges. Opinion for the court by Associate Judge Farrell. Opinion by Chief Judge Rogers, Concurring in part and Dissenting in part.

The opinion of the court was delivered by: Farrell

Plaintiff-appellant Deborah Fogg brought suit against her employer, the National Railroad Passenger Corporation (Amtrak), cross-appellant here, under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51 et seq. (1988). That statute makes a common carrier by railroad engaged in interstate commerce "liable in damages to any person suffering injury while . . . employed by such carrier in such commerce . . . for such injury . . . resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." 45 U.S.C. § 51. *fn1 The complaint alleged, in outline, that plaintiff, then a customer relations specialist with Amtrak, underwent lower back surgery in 1985 after which she returned to work and suffered increasing pain as a result of her job responsibilities, and that her supervisors, although aware of her complaints of pain and difficulty in carrying out her duties, negligently failed to modify either her duties or her work schedule.

During the trial, Judge Webber granted Amtrak's motion to exclude proof of plaintiff's future loss of wages to the extent that she continued to receive 60% of her salary under a long-term disability plan furnished by Amtrak. That ruling gives rise to the sole issue raised on appeal by plaintiff. *fn2 The case proceeded to verdict and the jury returned an award of damages for plaintiff of $400,000, but found that her own negligence contributed to the aggravation of her condition by 40%. *fn3 The court therefore entered judgment for plaintiff in the amount of $240,000. On appeal Amtrak contests the trial Judge's refusal both to grant its motion for judgment notwithstanding the verdict and to grant a remittitur. We affirm the judgment in all respects.


Amtrak's primary argument is that the Judge should have granted judgment in its favor as a matter of law because the evidence failed to establish either that Amtrak breached a duty owed to Ms. Fogg or that any such breach caused her injuries. Amtrak's burden on this issue is heavy: a judgment notwithstanding the verdict is proper only when "no reasonable person, viewing the evidence in the light most favorable to the prevailing party, could reach a verdict in favor of that party." Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100, 1103 (D.C. 1986).

Amtrak first contends that in light of the Judge's instructions and the verdict form submitted to the jury, it is clear that the jury returned a verdict for plaintiff solely on the theory that Amtrak had negligently refused to grant Ms. Fogg's request to work a shortened (three-day) workweek until she recuperated from her back condition. Amtrak argues that plaintiff has failed to cite -- and could not cite -- any authority for the principle that an employer may be liable under the FELA for refusing to approve a request for part-time work. We agree with Amtrak that had the case been submitted to the jury -- over Amtrak's objection -- solely on the issue whether it was required, under the circumstances, to grant a request for a shortened workweek, then a serious and troubling issue would arise concerning the scope of employer liability under the FELA. We conclude, however, that that issue is not presented because the Judge's instructions, viewed as a whole and in the context of the testimony, permitted the jury to find negligence on broader grounds discussed in the following.

A railroad has a duty to use reasonable care in furnishing its employees with a safe place to work. Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 558, 94 L. Ed. 2d 563, 107 S. Ct. 1410 (1987). Although the FELA does not expressly set forth that duty, it "obtained at common law in employer-employee relationships generally and it is from this source, by judicial decision[,] that the doctrine has become an integral part of the FELA." Isgett v. Seaboard Coast Line R.R., 332 F. Supp. 1127, 1139 (D.S.C. 1971). Atchison, Topeka & Santa Fe Ry. v. Buell, supra.

A railroad has a duty to assign employees to work for which they are reasonably suited. A railroad breaches that duty if it negligently assigns an employee to perform work beyond his capacity.

Fletcher v. Union Pac. R.R., 621 F.2d 902, 909 (8th Cir. 1980), cert. denied, 449 U.S. 1110, 101 S. Ct. 918, 66 L. Ed. 2d 839 (1981). "The railroad is negligent if it knew or should have known that its assignment exposed the employee to an unreasonable risk of harm." Id. Moreover, in view of the remedial purpose of the statute, "this continuous duty to provide a safe place to work is broader than the general duty to use reasonable care." Ragsdell v. Southern Pac. Transp. Co., 688 F.2d 1281, 1283 (9th Cir. 1982).

In the present case the trial Judge instructed the jury that it was the continuing duty of the employer-defendant "to use ordinary care under the circumstances with respect to the health and safety of its employees." The instruction continued:

A railroad company breaches that duty if it negligently requires its employee to perform work beyond her physical capacity, that is if the Defendant knew or should have known of the Plaintiff's diminished work capacity and in spite of that knowledge Defendant unreasonably continued to assign Plaintiff to tasks that Defendant knew or should reasonably have known would aggravate her physical condition.

This instruction correctly stated the law of railroad employer liability under the doctrine discussed above. See Ybarra v. Burlington N., Inc., 689 F.2d 147, 149 (8th Cir. 1982); Nuttall v. Reading Co., 235 F.2d 546, 549 (3d Cir. 1956); Waller v. Southern Pac. Co., 66 Cal. 2d 201, 57 Cal. Rptr. 353, , 424 P.2d 937, 942-43, 946 (1967).

We conclude there is evidence from which the jury could have found that Amtrak breached that duty in the present case. Ms. Fogg testified that she returned to her duties as a customer relations specialist with Amtrak *fn4 in early January 1986 following back surgery (a lumbar laminectomy). Her duties required that she remain seated at her desk for long hours. Beginning almost at once but especially after an incident in early February when she attempted to move a file cabinet, she experienced increasing pain in her lower back and right leg. She repeatedly informed her supervisors, including Calvin Kraft, of the pain and regularly had to report to the infirmary for rest and medication. She initially requested a "flex" schedule allowing her to leave work earlier in the afternoon to rest in preparation for her long commute home, but the request was denied. *fn5 Then, after the file cabinet incident, she asked permission to work a reduced three-day workweek until her health recovered and submitted a letter from her neuro-surgeon, Dr. Bruce Ammerman, recommending that schedule. According to Ms. Fogg's testimony, corroborated by that of a co-worker, Mr. Kraft promptly rejected the request saying that if Fogg could not work five days a week he would replace her (or she would "have to quit"). There was also testimony, however, including from Mr. Kraft, that the final decision on such requests was not Kraft's to make and that they should be transmitted to the personnel or medical departments for consideration. As the trial Judge correctly summarized this testimony:

There is evidence from which the Jury might find that Dr. Ammerman's note was presented by Mrs. Fogg to Mr. Kraft. They might find, based on certain versions of the evidence[,] that Mr. Kraft said that he would not permit the Plaintiff to work a shortened work week, that she must work five days or not at all. There is evidence from which the Jury might find that really was a company policy decision to be made not by Mr. Kraft but by Personnel and/or the Medical Office. That when Mrs. Fogg was told by Mr. Kraft that she would have to work five days or not at all that she then said, well, put the doctor's letter in my personnel file. The Jury might find that she took no further action, although there is evidence from which the Jury might find that had the matter been fully considered by Personnel or Medical Director, possibly they could have worked out an arrangement. The Jury might also find that there was a procedure whereby she could have appealed an adverse decision from Personnel and perhaps on appeal prevail with respect to a three-day work week, but the Jury might find that she avoided further efforts when told by Mr. Kraft, five days or not at all, or words to that effect.

Furthermore, even if the jury inferred from testimony by Amtrak witnesses that, in light of company policy, no such request for part-time work (had Ms. Fogg been encouraged to pursue it further) would have been granted, the jury still could find that the supervisors were negligent in allowing Fogg to continue her duties over a period of months while they were aware she was aggravating her previous injuries. Dr. Hayes, Amtrak's medical director at the time, testified that supervisors were authorized to require a "fitness for duty" examination as a condition of continued work and were obligated "to keep an eye on the physical well being of the employees." The jury could properly infer that, although Amtrak had no duty to approve a shortened work-week, the officials could not simply ignore plaintiff's condition and let her continue performing duties that were visibly beyond her present capacity.

In sum, we do not hold that Amtrak had a duty -- under these or any other circumstances -- to accede to a request for part-time work. Rather, the instructions and evidence allowed the jury fairly to conclude that plaintiff's supervisors either blocked an avenue by which she could have pursued a possible, temporary accommodation to her health recovery at the appropriate level, or at least were negligent in allowing her to continue her duties as before despite their awareness that she was aggravating her previous injuries. *fn6

We reject as well Amtrak's contention that plaintiff failed to prove causation since she "was the best Judge of her condition" and, by continuing work despite her increasing pain, became "the sole cause of her injury." This point was essentially answered by the Supreme Court in Rogers ...

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