Third Party Negligence Under the FELA

Consider a case in which a railroad employee, as a part of his job, is required to enter the property of a customer of the railroad. While performing his job duties, the employee is injured because a walkway on the customer's property is not maintained. The railroad has no direct control over the walkway and no knowledge of its condition. Can the employee bring an action against the railroad under the FELA, or is he limited to a state law negligence claim against the third party customer?

Under the FELA, the railroad has a "nondelegable" duty to provide its employees with a safe place to work. This means that the railroad may not escape liability because another party controls the conditions under which the employee is placed. In Sinkler v. Missouri Pacific, the United States Supreme Court considered the case of a cook working on the private car of his general manager who sustained injuries when the switching crew of another railroad caused a cut of cars to violently collide with his train. Although it was undisputed that the cook's injuries were caused by the negligence of a crew working for a different railroad, the Court held Missouri Pacific liable under the FELA. The Court stated that railroading is a unitary enterprise, and it was the conception of the FELA that the Missouri Pacific, as the railroad employer, should "bear the burden of all injuries befalling those engaged in the enterprise arising out of fault of any other member engaged in the common endeavor."

This point was later articulated in Payne v. Baltimore & Ohio Railroad Co., where a federal court of appeals stated that a railroad employer "may not legally delegate to another its duty to its employee, and thereby escape liability to such employee. This is the basis for the FELA. If the [railroad employer] does delegate and relies upon the services of his agent to carry out its own duty, it may not shift its liability from itself to said agent when an employee seeks to hold it directly liable. Under FELA the employer is the one owing the duty to the employee. The employee need not look elsewhere for his protection. He has a right under FELA to rely on his employer and none other. When the employer delegates its duty, or abdicates its control, the employer takes that risk, not the employee."

In our example above, the railroad requires its employee, in furtherance of its operation, to enter the premises of a customer. If the railroad delegates its responsibility to maintain a safe workplace onto that customer, it bears the risk that the customer will do so negligently. When an employee gets hurt because of that negligence, he may seek recovery under the FELA against his employer. In most instances, a claim under the FELA will be more favorable to a state law negligence claim.

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