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June 21, 1993


Appeal from the Superior Court of the District Of Columbia; (Hon. Colleen Kollar-Kotelly, Trial Judge)

Before Terry and Wagner, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge: Appellee, Steven Krouse, brought this suit against his former employer, National Railroad Passenger Corporation (Amtrak), under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60 (1988), for damages for injuries allegedly caused by Amtrak's negligence. *fn1 Krouse's theory of liability was that Amtrak negligently assigned him to work under conditions which it knew or should have known were beyond his physical capacity and which aggravated a knee and ankle injury he had sustained on the job. A jury found that Amtrak's negligence contributed to Krouse's injuries and that Krouse's contributory negligence was responsible for his injuries to the extent of twenty-five percent. Judgment was entered for Krouse on the jury verdict in the amount of $262,500, representing the amount of damages as "diminished by the jury in proportion to the amount of negligence attributable to employee." See 45 U.S.C. § 53. Appellant's principal argument on appeal is that the trial court erred in holding that appellee's claim for negligent assignment was not barred because the cause of action did not accrue under the FELA's statute of limitations until the employer's tortious conduct ceased. We agree and hold that a cause of action under the FELA accrues when the claimant knows or, in the exercise of reasonable diligence, should know of the injury and its cause and that the limitations period is not tolled beyond that date. Since the resolution of a factual question is required to resolve the limitations question, applying a different legal standard from that relied upon by the trial court, we vacate the judgment in favor of appellee and remand the case for further proceedings and a new trial consistent with this opinion.


While performing his job as a car repairman for Amtrak on January 12, 1987, Krouse fell from a train and injured his ankle. The next day, Krouse notified his supervisor, Bernard Campbell, about the incident and told him that he needed medical attention. It was not until January 15, 1987 that Campbell completed injury report forms and referred Krouse to Amtrak's medical dispensary, where Dr. Josefino Ceballos diagnosed that he had a severely sprained ankle, with ecchymosis of the right ankle and foot. *fn2 Dr. Ceballos recommended that Krouse wear a figure eight ankle brace, work light duty for three weeks, and refrain from walking excessively. *fn3 Dr. Ceballos informed Krouse's supervisors of the recommendation for light duty. The evidence was disputed as to whether the doctor arranged a follow-up visit with Krouse; however, the undisputed evidenced shows that there were no follow-up visits.

After being informed of Dr. Ceballos' recommendation, Campbell assigned Krouse to a desk job on January 16th, but another supervisor relieved him of the assignment about two hours later after someone from the union complained about Krouse performing managerial functions. Mr. Campbell reassigned Krouse to his regular duties as a car repairman. Krouse continued to experience a mild swelling of the ankle, and he walked with a limp. He noticed that these conditions occurred more in the evening and near the end of the week. Krouse also testified that his ankle hurt worse once he returned to work in late January 1987 following a brief vacation.

Krouse complained of pain to his supervisors and co-workers intermittently between January 13, 1987 and early 1988. None of Krouse's successor supervisors was informed of his condition, and they continued to assign him jobs which required extensive walking over ballast (a gravel-like material). Finally, Krouse complained of extreme pain to his last supervisor, who accommodated him with breaks when he needed them. The evidence at trial showed that in spite of his persistent pain, Krouse signed Amtrak forms on February 3, 1987 and February 23, 1987 certifying that he could perform regular duties and had no restriction of motion. The evidence also showed that Krouse did not seek medical attention for the two years following the injury and that he worked at outside jobs involving prolonged standing or physical labor while employed at Amtrak.

Krouse contacted an attorney on January 24, 1989 who referred him to an orthopedic surgeon, Dr. Frank Watkins. Dr. Watkins concluded that appellee's prolonged walking on uneven surfaces delayed the healing of Krouse's initial injury and further aggravated his injured ankle. Dr. Watkins advised Krouse to perform only light duty and to avoid walking on the ballast because it would further aggravate and damage his ankle. Amtrak's manager stated that such work was not available, and Krouse did not return to work for Amtrak thereafter.

Dr. Watkins referred Krouse to another specialist, Dr. Phillip Omohundro, who also attributed the severity of Krouse's injury to his continued walking over uneven surfaces at Amtrak. Dr. Omohundro determined that Krouse had a five percent permanent, partial impairment of the right ankle and a ten percent partial impairment to the right knee. Appellee's occupational disease expert, Dr. Mark Bradley, also attributed Krouse's permanent disability to his walking over uneven surfaces for prolonged periods and to the failure of appellant's medical department to restrict appellee's duties appropriately and follow up on the status of his injury and treatment.

After extensive discovery, Amtrak moved for summary judgment, arguing that the undisputed facts showed that the FELA's statute of limitations, 45 U.S.C. § 56, on Krouse's claim of negligent assignment commenced to run more than three years before appellee filed suit on March 2, 1990. Essentially, appellant argued that appellee possessed sufficient information concerning his injury and its possible cause to put him on notice of a possible claim more than three years before he filed his complaint. *fn4 In opposition, appellee contended his complaint was for a continuous tort, negligent assignment, for which the statute of limitations is tolled until the employee's exposure to the dangerous conditions ceases. Therefore, appellee argued, the statute of limitations commenced to run when he finally terminated his employment with Amtrak on January 25, 1989. Finding persuasive the analysis in Page v. United States, 234 U.S. App. D.C. 332, 729 F.2d 818 (1984), a case interpreting the limitations provision in the Federal Tort Claims Act (FTCA), *fn5 the trial court accepted the proposition that for torts involving a continuing injury, the cause of action accrues for statute of limitations purposes when the tortious conduct ceases. 234 U.S. App. D.C. at 335, 729 F.2d at 821. Therefore, the trial court denied appellant's motion for summary judgment, and the case proceeded to trial.

Appellant argues on appeal that appellee's claim is barred by operation of the FELA's statute of limitations, 45 U.S.C. § 56. It is appellant's position that the undisputed facts disclosed in connection with Amtrak's summary judgment motion, as well as the evidence adduced at trial, revealed that appellee knew or should have known prior to three years before filing suit the facts essential to place him on notice of a claim against Amtrak. According to appellant, it is these circumstances which determine when the cause of action accrues under the FELA's statute of limitations. Appellee argues that his claim is one for negligent assignment, a continuing tort, and that the statute of limitations under the FELA does not commence to run until the employer ceases to assign the employee to the harmful activity. It is appellee's position that the statute of limitations is tolled under such circumstances until the last day the employee was subjected to the conditions which caused the injuries, as the trial court concluded. To resolve the question presented by the parties' competing arguments, we examine the federal statute and pertinent case law.


An action cannot be maintained under the FELA unless commenced within three years from the date the cause of action accrued. 45 U.S.C. § 56. In interpreting the limitations provision in the FELA, we are required to apply federal substantive law. See Monessen Southwestern Ry. Co. v. Morgan, 486 U.S. 330, 335, 100 L. Ed. 2d 349, 108 S. Ct. 1837 (1988); see also Page, supra, 234 U.S. App. D.C. at 334, 729 F.2d at 820. *fn6 In cases arising under the FELA, a plaintiff has the burden of alleging and proving that his cause of action has been brought within the period of limitations. Brassard v. Boston & Maine R.R., 240 F.2d 138, 141 (1st Cir. 1957); Frasure v. Union Pacific R. Co., 782 F. Supp. 477, 479 (C.D. Cal. 1991). Compliance with the FELA statute of limitations is construed as a condition precedent to recovery, and the failure to bring suit timely bars not only the claimant's remedy, but also destroys the employer's liability. Emmons v. Southern Pacific Transp. Co., 701 F.2d 1112, 1117 (5th Cir. 1983); Dixon v. Martin, 260 F.2d 809, 811 (5th Cir. 1958); Frasure, 782 F. Supp. at 479. While the FELA statute of limitations is an affirmative defense, the burden is nevertheless on the plaintiff to establish that his case falls within an exception if brought outside of a three year time frame. Emmons, 701 F.2d at 1117-18; Frasure, 782 F. Supp. at 480; see also, Drazan v. United States, 762 F.2d 56, 60 (7th Cir. 1985) (applying the same rule under the FTCA).

The FELA does not provide a method for determining when a cause of action accrues; therefore, we look to federal case law for that interpretation. Albert v. Maine Cent. R. Co., 905 F.2d 541, 543 (1st Cir. 1990); Dubose v. Kansas City S. Ry. Co., 729 F.2d 1026, 1028 (5th Cir. 1984); see also Monessen, supra, 486 U.S. at 335. Cases which involve a traumatic injury or a single breach of duty and an immediately manifest injury pose little difficulty in determining the commencement of the limitations period. In such cases, the general rule for torts is that the cause of action accrues at the time the plaintiff's interest is invaded or at the time the tortious act is committed which causes injury. Clay v. Union Carbide Corp., 828 F.2d 1103, 1106 (5th Cir. 1987); Brassard, supra, 240 F.2d at 141 (citing RESTATEMENT, TORTS § 899 comment c). More problematic are cases involving latent injuries which cannot be discovered immediately or those where the injury has an indefinite onset and progresses over many years unnoticed. See Kichline v. Consolidated Rail Corp., 800 F.2d 356, 358 (3d Cir. 1986). In such cases, ...

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