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GOLDWATER v. METRO-NORTH COMMUTER R.R.

November 6, 1995

ELAINE L. GOLDWATER, Plaintiff,
v.
METRO-NORTH COMMUTER RAILROAD, Defendant.



The opinion of the court was delivered by: STANTON

 Elaine Goldwater, an employee of the Metro-North Commuter Railroad ("Metro-North"), claims she was assaulted at a Metro-North station while waiting for a train. She sues Metro-North under the Federal Employers' Liability Act ("FELA") and state law.

 Metro-North moves for summary judgment pursuant to Fed. R. Civ. P. 56(c), contending that (1) Goldwater's FELA claim is barred by the "commuter rule" and (2) Metro-North had no duty to protect Goldwater from the criminal acts of third persons.

 BACKGROUND

 At the time of the incident, Goldwater was an administrative assistant to Joel Bodley, Metro-North's Safety Manager. (Pre-trial Order, Agreed Facts PP 2-3) (hereinafter "PTO") She was required to work both in an office in New York City and at various locations outside the office as directed by Bodley. (Id. P 4.)

 Goldwater's regular work hours were 8:00 a.m. to 5:00 p.m. As a salaried employee, she was not paid for overtime nor was she paid for time spent commuting. (Walker Aff. P 3; Defendant's 3(g) Statement, P 8.) She was not, however, "on call" to respond to emergencies outside her normal working hours. (Defendant's 3(g) Statement, P 10.)

 On January 26, 1993, Bodley directed Goldwater to meet him at the Croton Harmon Metro-North facility for a safety meeting. (Bodley Dep., Krez Aff. Ex. 4, at 39.) He did not tell her to take a Metro-North train to Croton Harmon, which she did. (PTO, Agreed Facts PP 9, 11.)

 While Goldwater was waiting for a train at the Marble Hill station at about 8:05 a.m., *fn1" she claims she was assaulted and thrown to the tracks, causing physical and psychological injury. (PTO, Plaintiff's Proposed Findings of Fact P 5.) Although Metro-North does not deny that Goldwater was assaulted, it did not stipulate to the assault in the pre-trial order.

 DISCUSSION

 A. Summary Judgment Standard

 Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). All "justifiable inferences" must be drawn in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986).

 B. FELA Claim

 FELA, 45 U.S.C. ยง 51 et seq., provides a railroad employee with a remedy against her employer for injuries sustained in the course of employment as a result of the railroad's negligence. *fn2" The judicially-developed "commuter rule" bars recovery under FELA for injuries sustained while commuting to or from work. See, e.g., Getty v. Boston and Maine Corp., 505 F.2d 1226, 1227-28 (1st Cir. 1974); Sassaman v. Pennsylvania Railroad Co., 144 F.2d 950, 953 (3rd Cir. 1944); Williams v. Norfolk Southern Railway Co., 767 F. Supp. 756, 759-60 (E.D. Va. 1991); Thompson v. National Railroad Passenger Corp., 774 F. Supp. 1087, 1089 (N.D. Ill. 1991); Kress v. Long Island Rail Road, 526 F. Supp. 856, 859-60 (S.D.N.Y. 1981). The policy behind the rule is that FELA was enacted to protect railway workers against the dangers of railway work, not the risks of commuting to which all passengers are exposed. Williams, 767 F. Supp. at 759; Caillouette v. Baltimore & Ohio Chicago Terminal Railroad Co., 705 F.2d 243, 246 (7th Cir. 1983).

 However, courts do not apply the commuter rule when: (1) the employee is compensated for time spent travelling, Griffith v. Gardner, 358 Mo. 859, 217 S.W.2d 519, 523 (Mo. Sup. Ct. 1949); London Guarantee & Accident Co. v. Frazee, 112 Utah 91, 185 P.2d 284, 289 (Utah Sup. Ct. 1947); (2) the employee is on call at all times and his travel on the employer's railroad facilitates his availability, Parker v. Long Island Rail Road, 425 F.2d 1013, 1015 (2nd Cir. 1970); cf. Thomas v. Grigorescu, 582 F. Supp. 514, 516 (S.D.N.Y. 1984) (employer benefited from providing food and shelter for employees on layover but was not liable because cab company which caused accident was not employer's agent); or (3) the employer ...


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