Justia.com Opinion Summary: Plaintiff brought a slip and fall action against CSX under the Federal Employers' Liability Act (FELA), 45 U.S.C. 51 et seq., which provided a federal tort remedy for interstate railroad employees who were injured while working within the scope of their employment. At issue was whether 29 C.F.R. 1910.24(f) applied to an indoor office building and whether the trial court erred in allowing the jury to hear evidence of, and determine whether, plaintiff was out of service because he was within the broad scope of protection of the FELA. The court held that, because the requirement of section 1910.24(f) that the nosings be of nonslip finish was applicable to the stairs in CSX's office building, was raised by the evidence, and was not otherwise covered in the jury instructions, the trial court should have given plaintiff's request to charge the jury that it could consider a violation of that regulation as evidence of negligence on the part of CSX. The court also held that because the circumstances surrounding plaintiff's dispute with the supervisors a few hours before he went to CSX's administration building to attend the safety meeting were at least indirectly material to matters at issue in this case, including whether plaintiff was acting within the cope of his employment at the time of his fall, the trial court did not abuse its discretion in allowing CSX to cross-examine plaintiff on the issue and in admitting the testimony of supervisors for purposes of disproving certain facts to which plaintiff had testified.
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In the Supreme Court of Georgia
Decided: October 17, 2011
S11G0556. CSX TRANSPORTATION, INC. v. SMITH.
CARLEY, Presiding Justice.
CSX Transportation, Inc., which is a railroad involved in interstate
commerce, employed Larry Smith as a conductor. On April 6, 2004, two
supervisors allegedly observed Smith violate a safety rule by dismounting a
moving train and subsequently removed him from service pending further
investigation.
Several hours later, Smith entered CSX’s Terminal
Administration Building in Walbridge, Ohio and was walking up a flight of
stairs on his way to a union safety meeting when he slipped and hit his knee on
the edge of a step. A small puddle of liquid soap was later found on the stair
tread. Smith had knee surgery one year later.
In 2007, Smith brought suit against CSX in the Superior Court of
Gwinnett County under the Federal Employers’ Liability Act (FELA), which
provides a federal tort remedy for interstate railroad employees who are injured
while working within the scope of their employment. See 45 USC § 51 et seq.;
Eubanks v. CSX Transp., 223 Ga. App. 616, 617 (1) (478 SE2d 387) (1996).
Smith moved in limine to exclude as irrelevant any evidence of past discipline
by CSX, including the incident before his fall which allegedly caused two
supervisors to advise him that he was “out of service.” The trial court granted
that motion. At trial, the jury returned a verdict in favor of CSX, and the trial
court entered judgment thereon.
The Court of Appeals reversed because the trial court refused Smith’s
request to instruct the jury regarding a federal Occupational Safety and Health
Administration (OSHA) stair regulation requiring that “[a]ll treads shall be
reasonably slip-resistant and the nosings shall be of nonslip finish.” 29 CFR §
1910.24 (f). Smith v. CSX Transp., 306 Ga. App. 897, 901-903 (2) (703 SE2d
671) (2010) (four judges fully concurred in this division). The Court of Appeals
also concluded that, because of Smith’s own actions, the trial court did not err
in allowing CSX to cross-examine him regarding whether he had been taken
“out of service” before his fall and to present evidence concerning this issue.
Smith v. CSX Transp., supra at 899-901 (1) (plurality), 904-905 (Andrews, P.J.,
dissenting, joined by two other judges). Presiding Judge Barnes concurred
specially on the ground that Smith’s failure to object or otherwise seek
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enforcement of the ruling on the motion in limine “could not open the door to
the questioning by CSX.” Smith v. CSX Transp., supra at 904. Presiding Judge
Andrews and two other judges dissented with respect to the jury charge issue.
We granted certiorari to consider both issues raised in the Court of Appeals.
1. CSX contends that 29 CFR § 1910.24 (f) does not apply to an indoor
office building. CSX makes no assertion that this regulation does not generally
apply to railroads, nor does it dispute the Court of Appeals’ determination that
evidence of an applicable OSHA regulation is admissible as evidence of a
railroad’s negligence. Smith v. CSX Transp., supra at 901-902 (2), fn. 11
(citing Ries v. Nat. R. Passenger Corp., 960 F2d 1156, 1165 (III) (3d Cir.
1992)).
Pursuant to the Occupational Safety and Health Act of 1970, the Secretary
of Labor has issued two types of safety and health standards. “The first, known
as the ‘general industry standards,’ see 29 C.F.R. pt. 1910, act as a default set
of standards.” CH2M Hill v. Herman, 192 F3d 711, 717 (II) (7th Cir. 1999).
As the Court of Appeals correctly held, those “general standards, which are set
out in 29 CFR Part 1910, apply to any workplace, unless specifically excepted.
29 CFR § 1910.5 (a). See also 29 CFR § 1910.5 (c) (2).” Smith v. CSX
3
Transp., supra at 902 (2). See also 29 USC § 653 (a). The general industry
standards “are binding upon employers engaged in businesses affecting
commerce. [Cit.]” Commissioner of Labor v. Gary Steel Products Corp., 643
NE2d 407, 413 (Ind. App. 1994). “In addition, the Secretary has presented
various industry-specific standards” which may specifically preempt the general
standards. CH2M Hill v. Herman, supra. See also Commissioner of Labor v.
Gary Steel Products Corp., supra. The Secretary of Labor has not promulgated
any standards specific to the railroad industry.
However, OSHA regulations are inapplicable “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 USC § 653 (b) (1). Consistent with this directive, the
Federal Railroad Administration (FRA) in 1978 issued a policy “statement
indicating which aspects of the railroad industry fall under the exclusive
jurisdiction of the FRA, thereby displacing applicable OSHA regulations.”
Velasquez v. Southern Pacific Transp. Co., 734 F2d 216, 218 (5th Cir. 1984).
See also Callahan v. Nat. R. Passenger Corp., 979 A2d 866, 872 (Pa. Super.
2009). The Occupational Safety and Health Review Commission (Commission)
4
itself views that policy statement as a proper exercise of the statutory authority
set forth in 29 USC § 653 (b) (1) and defers to the statement with respect to
which matters are appropriate for OSHA regulation on an industry-wide basis.
Secretary of Labor v. Consolidated Rail Corp., 16 O.S.H. Cas. (BNA) 1033
(1993 O.S.H. Dec. ¶ 30012) (O.S.H.R.C. 1993); Secretary of Labor v.
Consolidated Rail Corp., 10 O.S.H. Cas. (BNA) 1577 (1982 O.S.H. Dec. (CCH)
¶ 26044) (O.S.H.R.C. 1982).
The FRA policy statement “recognizes that OSHA has application to ‘the
occupational safety and health of railroad employee(s).’ Policy Statement, 43
Fed. Reg. 10,583, 10,585 (March 14, 1978).” Callahan v. Nat. R. Passenger
Corp., supra. In the statement, the FRA “delegated jurisdiction to [OSHA] for
safety pertaining to ‘railroad yards, shops and associated offices . . . with respect
to conditions not rooted in nor so closely related to railroad operations.’ [Cit.]”
(Emphasis supplied.) Ries v. Nat. R. Passenger Corp., supra at 1164 (II) (C)
(quoting 43 Fed.Reg., supra at 10,587). Furthermore,
[t]he policy statement provides 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.” [Cit.] (Emphasis supplied.)
5
Ledbetter v. Mo. Pacific R. Co., 12 SW3d 139, 142 (Tex. App. 1999) (quoting
43 Fed. Reg., supra). Although the FRA’s statement does describe three
exceptions to this rule, none of those exceptions is applicable here. Ledbetter
v. Mo. Pacific R. Co., supra at 143; 43 Fed. Reg., supra. See also Callahan v.
Nat. R. Passenger Corp., supra at 873. Compare Velasquez v. Southern Pacific
Transp. Co., supra.
In accordance with the FRA policy statement, we hold that the OSHA
stairway regulations in 29 CFR § 1910.24 apply to railroad office buildings.
Moreover, as our discussion above should make clear, the Court of Appeals
correctly held that,
[i]n the context of 29 CFR Part 1910, the modifier “general
industry” or “general industrial” plainly denotes that the standard
has general application to any workplace and is not limited to
certain industries that are subject to additional, particularized
standards. [Cits.] Subpart D, which provides standards for
“walking-working surfaces,” is such a general standard.
Smith v. CSX Transp., supra. Therefore, we are not persuaded by the apparently
contrary decision of an administrative law judge, upon which CSX relies, that
preceded the Commission’s 1982 recognition of the FRA policy statement and
that did not discuss the meaning of “general industrial” in the context of 29 CFR
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Part 1910. See Secretary of Labor v. Williams & Davis Boilers, 8 O.S.H. Cas.
(BNA) 2148 (1980 O.S.H. Dec. (CCH) ¶ 24818) (O.S.H.R.C.A.L.J. 1980).
Where, as here, there is no relevant exception or preemption, the regulations of
“fixed general industrial stairs” in 29 CFR § 1910.24, not being limited to a
specific industry, apply to all fixed stairs in every industry regulated by OSHA.
That classification goes beyond stairs located around “machinery, tanks, and
other equipment” and includes “stairs leading to or from floors . . . .” 29 CFR
§ 1910.24 (a). See also 29 CFR § 1910.21 (b) (8) (defining stairs, as used in §
1910.24, so as to include “[a] series of steps leading from one level or floor to
another, or” leading to equipment). The stairs in CSX’s office building on
which Smith fell come within this description and not within the exceptions in
29 CFR § 1910.24 (a) applying “to stairs used for fire exit purposes, to
construction operations to private residences, or to articulated stairs . . . .” Stairs
in office buildings were not added to this list of exceptions even though they
easily could have been so added.
Contrary to CSX’s further argument, 29 CFR § 1910.23 (d) is not the only
possible applicable OSHA stair regulation. It regulates different aspects of
stairway safety than does § 1910.24. The application of § 1910.23, like §
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1910.24, depends on whether regulation of the particular conditions at issue has
been preempted through FRA’s policy statement. Secretary of Labor v.
Consolidated Rail Corp., 10 O.S.H. Cas. (BNA), supra. Thus, the potential
applicability of one section to a certain condition in a given industry does not
exclude the other.
CSX alternatively contends that Smith offered no evidence at trial that 29
CFR § 1910.24 (f) was violated. However, witnesses testified that the nosings
were “vinyl and slippery” and that if the nosings had had a nonslip finish,
Smith’s boot would have caught on the edge of the stair, preventing his fall.
Therefore, the Court of Appeals correctly held that
Smith presented evidence that the nosings on the stairs in the CSX
administration building where he fell were not of a nonslip finish
and that, together with the soap spill, the nosings’ finish caused his
fall.
Smith v. CSX Transp., supra.
We conclude that, because the requirement in 29 CFR § 1910.24 (f) that
the nosings be of nonslip finish was applicable to the stairs in CSX’s office
building, was raised by the evidence, and was not otherwise covered in the jury
instructions, the trial court should have given Smith’s request to charge the jury
8
that it could consider a violation of that regulation as evidence of negligence on
the part of CSX. See Smith v. CSX Transp., supra at 901 (2), fn. 9 (setting out
the request in full). Therefore, the Court of Appeals correctly reversed the
judgment of the trial court on this basis.
2. Despite that proper reversal, we nevertheless consider the evidentiary
issue as well because we also granted certiorari for this purpose and because, as
the Court of Appeals correctly observed, the evidentiary issue is likely to recur
on retrial. Smith v. CSX Transp., supra at 900 (1), fn. 7. In the Court of
Appeals, Smith contended that “‘[t]he trial court erred in allowing the jury to
hear evidence of, and determine whether, [Smith] was out of service because,
as a matter of law[, he] was within the broad scope of protection of the FELA,
45 U.S.C. § 51 et seq.’” Smith v. CSX Transp., supra at 904 (Andrews, P.J.,
dissenting).
Although the portion of the motion in limine at issue addressed evidence
that Smith was “out of service,” it primarily dealt with evidence of past
discipline, and only the issue of past discipline was addressed at the pre-trial
hearing on the motion in limine. In opening statement, Smith’s counsel stated
that “[m]aybe [CSX] is going to say . . . that [Smith] shouldn’t have been on the
9
property.” Indeed, CSX’s attorney, in his opening statement, stated the
following:
Smith should not have been there that morning. He had been taken
out of service just hours before . . . by company officials who told
him, “You’re out of service,” which he knows means you’re not
allowed to come on company property. So he should not have even
been there.
When the issue initially came up during testimony of the first witness, a
bench conference ensued, during which Smith’s counsel stated as follows:
I think what we discussed in the motions in limine is that the
specific discipline was not relevant . . . . What’s relevant is they
claim they took him out of service, and that’s fine. They can argue
that we saw him violating a rule and took him out of service.
Smith’s attorney questioned three other witnesses, including Smith, with respect
to the meaning of “out of service” and Smith’s status in that regard.
The Court of Appeals correctly acknowledged that “the favorable ruling
on Smith’s motion in limine did not require him to object to evidence
encompassed by his motion . . . .” Smith v. CSX Transp., supra at 900 (1). See
also Reno v. Reno, 249 Ga. 855, 856 (1) (295 SE2d 94) (1982); Smith v. CSX
Transp., supra at 903-904 (Barnes, P.J., concurring specially). However, “the
party winning a motion in limine may open the door to the offending evidence
10
by offering evidence which in fairness allows the other side to delve into the
area previously precluded.” Neal W. Dickert, Ga. Handbook on Foundations
and Objections § 6:13 (2011 ed.). See also T & M Investments v. Jackson, 206
Ga. App. 218, 220 (3) (425 SE2d 300) (1992). It is well-settled that, even
though a party makes a motion in limine and obtains a favorable ruling thereon,
when he nevertheless has interjected the prohibited evidence through his own
testimony or otherwise “‘has himself induced what he subsequently
[enumerates] as error [in that regard], he will not be heard to complain of it on
appeal.’ [Cit.]” Booker v. Older Americans Council of Middle Ga., 278 Ga.
App. 407, 410 (2) (629 SE2d 69) (2006). See also Cook v. State, 270 Ga. 820,
831 (12) (514 SE2d 657) (1999); Board of Regents of the Univ. System of Ga.
v. Ambati, 299 Ga. App. 804, 808 (2) (685 SE2d 719) (2009). Thus, Presiding
Judge Andrews correctly observed that,
[g]iven his counsel’s concession about the scope of the motion in
limine ruling, and the testimony Smith himself gave on the “out of
service” issue, Smith cannot complain that the trial court erred by
allowing CSX to cross-examine him and present evidence
concerning this issue. [Cits.]
Smith v. CSX Transp., supra at 905.
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We further note that, once the door was opened, the particular crossexamination of Smith and subsequent impeaching evidence was admissible. As
the plurality opinion in the Court of Appeal concludes, Smith “opened the door
to being impeached with evidence that tended to disprove his testimony.” Smith
v. CSX Transp., supra at 900 (1). See also OCGA § 24-9-82; Lee v. State, 162
Ga. App. 259, 262 (4) (290 SE2d 307) (1982). “‘While a witness may not be
impeached because of a discrepancy as to a wholly immaterial matter, a witness
may be impeached on a collateral issue which is indirectly material to the issue
in the case.’ [Cit.]” Barngrover v. Hins, 289 Ga. App. 410, 412 (1) (657 SE2d
14) (2008). See also Rogers v. State, 282 Ga. 659, 666 (8) (653 SE2d 31)
(2007). On cross-examination, Smith contradicted his deposition testimony that
an employee who is out of service may not go onto railroad property without
permission, and he affirmatively testified that he was not taken out of service
prior to his fall. Because the circumstances surrounding Smith’s dispute with
the supervisors a few hours before he went to CSX’s “administration building
to attend the safety meeting were at least indirectly material to matters at issue
in this case, including whether Smith was acting within the scope of his
employment” at the time of his fall, “the trial court did not abuse its discretion
12
in allowing CSX to cross-examine Smith on the issue and in admitting the
testimony of [the supervisors] for purposes of disproving certain facts to which
Smith had testified. [Cits.]” Smith v. CSX Transp., supra at 900-901 (1).
Judgment affirmed. All the Justices concur, except Melton, J., who
dissents.
13
S11G0556. CSX TRANSPORTATION, INC. v. SMITH.
MELTON, Justice, dissenting.
Because I do not believe that the stairs on which Larry G. Smith slipped
and fell are “fixed general industrial stairs” covered by OSHA at 29 CFR §
1910.24, I do not believe that the trial court erred by denying Smith’s request
to instruct the jurors otherwise. For this reason, the Court of Appeals’ contrary
finding should be reversed, and I must respectfully dissent from the opinion of
the majority.
29 CFR § 1910.24 (a) states:
This section contains specifications for the safe design and
construction of fixed general industrial stairs. This classification
includes interior and exterior stairs around machinery, tanks, and
other equipment, and stairs leading to or from floors, platforms, or
pits. This section does not apply to stairs used for fire exit purposes,
to construction operations to private residences, or to articulated
stairs, such as may be installed on floating roof tanks or on dock
facilities, the angle of which changes with the rise and fall of the
base support.
(Emphasis supplied.) As is clear from this definition, the statute governs stairs
which are used for actual industrial purposes. Examples of these purposes are
then set out in following subsections which refer to activities such as gauging
and maintenance which “may expose employees to acids, caustics, gases, or
other harmful substances” as well as “the carrying of tools or equipment by
hand.” 29 CFR § 1910.24 (b). To increase safety conditions during these
industrial uses, fixed general industrial stairs must be constructed to handle
heavy loads, 29 CFR § 1910.24 (c), and help prevent slipping when industrial
uses are ongoing. 29 CFR § 1910.24 (f). In the truly industrial setting
contemplated by 29 CFR § 1910.24, these requirements prevent related
industrial accidents.
In this case, however, Smith slipped on stairs in a CSX office building on
his way to a meeting room. This office building was used for administrative
purposes only, and the stairs on which Smith slipped were interior stairs that
were not used for any industrial purposes such as gauging, inspecting, accessing
elevated platforms, etc. As a result, they are not “fixed general industrial stairs”
under 29 CFR § 1910.24 which would require safety features specifically
applicable to the type of truly industrial uses mentioned in the OSHA regulation.
They were simply stairs adjoining two stories in an administrative office
building owned by a company which was engaged in industrial uses in other
buildings and locales.
2
Therefore, because the stairs were not “fixed general industrial stairs,” the
trial court did not err by refusing Smith’s request to instruct the jury regarding
this regulation under OSHA. Accordingly, the Court of Appeals’ finding to the
contrary should be reversed.
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