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Miller v. BNSF Railway Co.

United States District Court, D. Colorado

May 11, 2017

GEORGE MILLER, Plaintiff,
v.
BNSF RAILWAY COMPANY, a Delaware Corporation, Defendant.

          ORDER ON MOTIONS IN LIMINE

          Wlliam J. Martínez United States District Judge

         In this case brought pursuant to the Federal Employer's Liability Act, 45 U.S.C. §§ 51 et seq. (“FELA”), Plaintiff George Miller (“Plaintiff”) claims he was injured as a result of one or more negligent acts or omissions by Defendant, BNSF Railway Company (“Defendant” or “BNSF”), while he was employed there. The Court has explained the relevant factual and legal background of this case in detail in other recent Orders (see ECF Nos. 91, 92), and familiarity with that background is presumed. Now before the Court are Plaintiff's Motion In Limine Concerning Various Issues (ECF No. 81 (“Plaintiff's Motion”)) and Defendant's Motion In Limine on Various Evidentiary Issues (ECF No. 79 (“Defendant's Motion”)). For the reasons explained below, each motion is granted in part and denied in part.

         I. PLAINTIFF'S MOTION

          A. Assumption of the Risk, and BNSF's “Empowerment” and Safety Rules

          Plaintiff moves for a pretrial order precluding Defendant from raising an assumption of the risk defense or “arguing that Plaintiff assumed the risk of his employment, that he was injured as a result of the purported ‘normal risks and hazards' associated with railroading, or that he violated BNSF's . . . rules under which employees are purportedly ‘empowered' to work safely.” (ECF No. 81 at 1.)

         Assumption of the risk is a prohibited defense under FELA, which states that an employee “shall not be held to have assumed the risks of his employment in any case where [plaintiff's] injuries or death resulted in whole or in part from the negligence of [the defendant].” 45 U.S.C. § 54. When Congress adopted this provision, “every vestige of the doctrine of assumption of risk was obliterated from the law.” Tiller v. Atl. Coast Line R. Co., 318 U.S. 54, 58 (1943). “The result is an Act which requires cases tried under [FELA] to be handled as though no doctrine of assumption of risk had ever existed.” Id. at 64. However, FELA also contains a mandatory contributory negligence provision: “damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.” 45 U.S.C. § 53.[1]

         Here, Plaintiff argues that Defendant should be prohibited from presenting “assumption of the risk evidence under the guise of contributory negligence by invoking its so-called ‘empowerment' rules.” (ECF No. 81 at 3.) These rules call on Defendant's employees in generic terms to “‘take the safe course' when performing their job duties” and “empower” them to refuse to perform tasks if they believe them unsafe. (See id.)

         Plaintiff predicts that Defendant may use evidence and argument regarding these rules at trial to improperly smuggle in a prohibited assumption of risk defense. Defendant acknowledges the defense is prohibited and states it “will not argue that Plaintiff ‘assumed the risk of injury, '” but will argue contributory negligence. (ECF No. 84 at 1.)

         Defendant further claims that its “empowerment policy” is relevant because it “tends to show that Plaintiff's workplace was reasonably safe, ” and that the fact Plaintiff “did not empower himself” by refusing to perform his assigned work duties, “demonstrates that he did not believe his work was unsafe.” (Id. at 1, 2.)

         In addressing essentially the same issue in a prior case, this Court made the following ruling:

[E]vidence of any contributory negligence by Plaintiff is a necessary component of evaluating Plaintiff's claim, and may not be excluded. However, courts have distinguished between [contributory negligence and assumption of the risk] by noting that evidence of contributory negligence is that which shows “a careless act or omission on the plaintiff's part tending to add new dangers to conditions that the employer negligently created or permitted to exist, ” as opposed to evidence of assumption of risk, which is “an employee's voluntary, knowledgeable acceptance of a dangerous condition that is necessary for him to perform his duties.” Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1316 (9th Cir. 1986).
Furthermore, and particularly with regard to the type of evidence Defendant seeks to introduce, the Court notes that the Tenth Circuit has distinguished between violations of “specific, objective safety rules, ” which may constitute negligence per se, and violations of general safety rules which are “not specific enough to supply a standard the jury could apply.” Green v. Denver & Rio Grande W. R.R. Co., 59 F.3d 1029, 1034 (10th Cir. 1995). The Tenth Circuit held that a proposed jury instruction was improper because it “fail[ed] to limit the jury to consideration of specific, objective safety rules, ” and instead “would allow a finding of negligence without requiring the jury to find the rule violation contributed to the injury.” Id. While Green was concerned with the employer's violation of a safety rule as evidence of its negligence, the Tenth Circuit's holding applies equally to evidence of an employee's violation of a safety rule as evidence of contributory negligence.
Accordingly, the Court declines to exclude all evidence of Defendant's “empowerment” safety rules, but notes that Defendant will not be permitted to introduce evidence that Plaintiff assumed an inherent risk merely by performing his duties, nor will Defendant be entitled to an instruction that Plaintiff's violation of a safety rule may be considered in evaluating contributory negligence unless that safety rule is both specific and objective.

Evans v. Union Pac. R.R. Co., 2015 WL 1945104, at *1-2 (D. Colo. Apr. 29, 2015).

         The Court sees no reason to reach a different result here, and therefore adopts the reasoning and result in Evans, as quoted above.[2] Plaintiff's cited authorities do not support a pretrial order excluding evidence. Only one case cited by Plaintiff addresses an evidentiary ruling, Gaskins v. CSX Transportation, 2006 WL 6864633, at *1 (N.D.Ga. Sep. 5, 2006). However, Gaskins, is generally consistent with this Court's decision here and in Evans. In Gaskins, the district court, citing Green, also denied a pretrial motion to exclude evidence of safety rules, given the defendant's “representations that it will not present evidence seeking to establish assumption of the risk, ” and the “identifi[cation of] particular safety rules that [defendant] claims [plaintiff] violated.” Id. at *1 (also citing Parra v. Atchison, Topeka & Santa Fe Ry. Co., 787 F.2d 507, 508-09 (10th Cir. 1986)); but see id., at *11 (stating general safety rules would be inadmissible as “nothing more than a Defendant's attempt to establish assumption of the risk”).

         Nearly all the other cases cited by Plaintiff address whether trial courts gave proper jury instructions regarding contributory negligence and/or assumption of the risk, without improperly permitting an assumption of the risk defense to be submitted to the jury.[3] As in Evans, Defendant will not be entitled to a jury instruction that Plaintiff's violation of a safety rule may be considered as to contributory negligence, unless the rule is both specific and objective. Further, the Court recognizes that evidence of the “empowerment” rules may call for a more specific instruction foreclosing an improper assumption of the risk defense. See Jenkins, 22 F.3d at 212 (district court erred by failing to give instruction that “prevent[ed] the jury from considering the forbidden defense of assumption of the risk while allowing it to make factual findings on the issue of comparative negligence”); Birchem, 812 F.2d at 1049 (“district court properly admonished the jury . . . that the Railroad's theory was an impermissible effort to transfer to [plaintiff] its nondelegable duty to provide safe equipment and a safe working environment”). However, final ruling on any such instruction(s) must await the actual presentation of evidence at trial.

         Given the foregoing discussion, Plaintiff's Motion as to assumption of the risk and Defendant's “empowerment” rules is GRANTED IN PART, to the extent the Court will limit argument that improperly advances an assumption of the risk defense and will, as needed, give jury instructions that foreclose such a defense. Plaintiff's Motion is also DENIED IN PART on this issue, to the extent the Court will not exclude all evidence of Defendant's “empowerment” or other safety rules.

         B. Railroad Retirement Board Benefits

         Plaintiff moves to exclude evidence that Plaintiff has received benefits from the Railroad Retirement Board (or may in the future). (ECF No. 81 at 5-7.) Plaintiff is correct that “the collateral source rules prohibits admission of RRA disability benefits in a FELA case.” Green, 59 F.3d at 1032-33 (citing Eichel v. New York Central R.R., 375 U.S. 253 (1963)).

         Without conceding that railroad benefits are “per se inadmissible, ” Defendant promises that it “will not introduce this evidence unless Plaintiff opens the door by claiming, for instance, that he cannot participate in his recovery or obtain his drivers' license because of his financial condition.” (ECF No. 84 at 3.) Defendant further reserves its right to “infor[m] the jury that Plaintiff would have been eligible for a pension at age 60 if he kept working.” (Id.)

         Following Green and given Defendant's position, Plaintiff's Motion is GRANTED to exclude evidence regarding Plaintiff's Railroad Retirement Board benefits. While the Court fails to see the potential relevance of evidence regarding Plaintiff's pension eligibility, it defers ruling on this issue, in case Defendant can show at trial how this fact is relevant and admissible. By necessity, the Court also ...


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