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FELA - COTTLES V. NORFOLK SOUTHERN RAILWAY CO.

Cottles v. Norfolk Southern Railway Co., [Ms. 1140632, Aug. 26, 2016] __ So.3d __ (Ala. 2016). The Supreme Court reverses a summary judgment entered by the Morgan Circuit Court in Cottles's action under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. The Court holds that expert opinion testimony from Cottles's railroad expert to the effect that a railroad inspector appropriately trained in federal railroad administration track safety standard (49 C.F.R. § 209) who inspected the switch at which Cottles was injured knew or should have known of its defective condition. The Court emphasized the "relaxed standard of causation" "applied under the FELA":

" ' "Under this statute, the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." ' "

Ms. 21, quoting CSX Transp., Inc. v. Miller, 46 So.3d 434, 460-61 (Ala. 2010). Under this standard, the issue on summary judgment is "whether Norfolk Southern should have known that the 'hard-to-throw' condition of the switch indicated that there could be something wrong with it," i.e., whether Norfolk Southern could have an anticipated or reasonably foreseen that the "hard-to-throw" condition of the switch at least warranted a further investigation. Ms. *30.

Significantly, the Court rejects the contention that regulations promulgated pursuant to the Federal Rail Safety Act preclude recovery under FELA where the two conflict. Henderson v. National R.R. Passenger Corp., 87 F.Supp.3d 610 (S.D.N.Y. 2015), Infermo v. New Jersey Transit Rail Operations, Inc. (No. 10-2498 SRC), Jan. 24, 2012 (D. N.J. 2012) (not selected for publication in F.Supp.), and Fair v. BNSF Ry., 238 Cal. App. 4th 269, 189 Cal. Rptr.3d 150 (2015), the Court adheres to a construction of the interplay between the regulations under FRSA and the remedies afforded by FELA outlined in Pom Wonderful, LLC v. Coca-Cola Co., __ U.S. __ 134 S.Ct. 228 (2014) (Ms. *35-44), namely, that FRSA's regulations are simply to be treated like any other regulation such that complying with them may provide non-dispositive evidence of due care. Id. Ms. *45-46. Accordingly, even though an FRSA regulation did not require Norfolk Southern's inspector to throw the switch when it was inspected, this regulation constituted non-dispositive evidence of due care which was placed in conflict by Cottles's expert's opinion testimony. Because of the conflict in the evidence, the summary judgment was due to be reversed.

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