II. Plaintiff's Complaint and Defendants' Motion
Plaintiff's theory of recovery supporting federal jurisdiction
is a claim brought pursuant to FELA. All other claims sound in
common law negligence.
Defendants MTA and LIRR seek summary judgment on the FELA cause
of action. MTA claims that it is not a proper defendant under
FELA because it is not a common carrier within the meaning of the
statute. LIRR, while conceding that its employees are subject to
FELA, argues that it is not a proper defendant here because it
was not Plaintiff's employer at the time of the accident and
Plaintiff was not a "borrowed servant" sufficient to invoke FELA.
The court considers the merits of the motion below.
I. Legal Principles
The Federal Employers' Liability Act imposes liability upon
common carriers by railroad for the injury or death of railroad
employees that results, in whole or in part, from the railroad's
negligence or that of its employees. 45 U.S.C. § 51. See Edwards
v. Pacific Fruit Express Co., 390 U.S. 538, 538, 88 S.Ct. 1239,
20 L.Ed.2d 112 (1968). FELA was enacted early in the last century
to protect railroad employees from the physical dangers of
railroading. Thus, the statute has been described as a "federal
remedy" that shifts part of the "human overhead" costs from
employees to employers. Consolidated Rail Corporation v.
Gottshall, 512 U.S. 532, 542, 114 S.Ct. 2396, 129 L.Ed.2d 427
(1994). As stated by Justice Douglas in 1949, the FELA was
enacted to "put on the railroad industry some of the cost for the
legs, eyes, arms, and lives which it consumed in its operations."
Wilkerson v. McCarthy, 336 U.S. 53, 68, 69 S.Ct. 413, 93 L.Ed.
497 (1949) (Douglas, J., concurring).
By its express terms, FELA applies only to "common carriers."
See 45 U.S.C. § 51; Chaneyfield v. City of New York,
525 F.2d 1333, 1336 (2d Cir. 1975). The Supreme Court has construed this
term simply, to mean "one who operates a railroad as a means of
carrying for the public. . . ." Pacific Express, 390 U.S. at
540, 88 S.Ct. 1239, quoting, Wells Fargo & Co. v. Taylor,
254 U.S. 175, 187-88, 41 S.Ct. 93, 65 L.Ed. 205 (1920); see also
Lone Star Steel Company v. McGee, 380 F.2d 640, 643 (5th Cir.
1967) ("common carrier . . . holds himself out to the public as
engaged in the business of transportation of person or property
from place to place for compensation, offering his services to
the public generally"), quoting, Kelly v. General Elec. Co.,
110 F. Supp. 4, 6 (E.D.Pa.), aff'd, 204 F.2d 692 (3d Cir. 1953).
Where common carrier status is not found, it is generally
because the business in which the entity is engaged is something
other than the business of offering to transport goods or
passengers by rail. For example, in Wells Fargo & Co. v.
Taylor, 254 U.S. 175, 41 S.Ct. 93, 65 L.Ed. 205 (1920), the
Supreme Court held that the defendant express messenger service
company was not a common carrier. Thus, although the
plaintiff-employee was riding in an express car provided by the
railroad at the time of his injury, the company employing
plaintiff was not in the business of providing rail service as a
means of carrying for the public and was therefore not a common
carrier within the meaning of FELA. Wells Fargo, 254 U.S. at
187-88, 41 S.Ct. 93; see also Robinson v. Baltimore & Ohio R.
Co., 237 U.S. 84, 94, 35 S.Ct. 491, 59 L.Ed. 849 (1915) (Pullman
car porter was neither a railroad employee nor an employee of a
Similarly, in Edwards v. Pacific Fruit Express Co.,
390 U.S. 538, 88 S.Ct. 1239, 20 L.Ed.2d 112 (1968), the Supreme Court held
that an employee of a company that owned and leased refrigerated
cars to railroads was not covered by FELA. There, despite the
fact that the plaintiff was injured while on a railroad, he was
by FELA because his employer was not engaged in the business of
offering to carry goods or passengers by rail and was, therefore,
not a common carrier. Edwards, 390 U.S. at 543, 88 S.Ct. 1239.
In Edwards, the Supreme Court stressed that an entity is
subject to FELA only if it operates a going railroad and FELA was
never intended to cover those whose "activities and facilities
which, while used in conjunction with railroads and closely
related to railroading, are yet not railroading itself."
Edwards, 390 U.S. at 540, 88 S.Ct. 1239.*fn1
When determining whether a defendant is a common carrier, it is
not the corporate form of the entity that is dispositive.
Instead, courts look to the actual operations of the entity to
determine whether it is operating as a common carrier. See
United States v. State of California, 297 U.S. 175, 181-82, 56
S.Ct. 421, 80 L.Ed. 567 (1936) (common carrier status under the
Safety Appliance Act depends not upon "corporate character or
declared purposes, but upon what it does"), quoting, United
States v. Brooklyn Eastern Dist. Term., 249 U.S. 296, 304, 39
S.Ct. 283, 63 L.Ed. 613 (1919) (holding that freight terminal was
a common carrier for purposes of the Hours of Service Act).
With these principles in mind, the court turns to consider
whether the MTA is a common carrier by railroad that is subject
II. The Purpose, Structure and Functioning of the MTA
A. Purpose of the MTA
As noted above, the MTA is a public benefit corporation created
pursuant to the Public Authorities Law of the State of New York.
See N.Y. Pub. Auth. L. § 1264. MTA refers to itself as the
"largest public transportation provider in the Western
Hemisphere." CFO's Letter of Transmittal dated March 27, 1997,
Comprehensive Annual Financial Report of MTA for year ended
December 31, 1997, annexed as Exhibit B to Declaration of Melissa
L. Weiss in Support of Motion for Summary Judgment (hereinafter
The legislation pursuant to which the MTA was created charges
it with the "continuance, further development and improvement of
commuter transportation and other services related thereto within
the metropolitan commuter district." N.Y. Pub. Auth. L. §
1264(1). To these ends, the MTA has broad powers including the
• acquire transportation facilities;
• "establish, construct, effectuate, operate,
maintain, renovate, improve, extend or repair" any
• establish and collect fares and tolls;
• establish standards of operation and rules and
regulations regarding the conduct and safety of the
• lease railroad cars for use in passenger service
• "do all things it deems necessary, convenient or
desirable to manage, control and direct the
maintenance and operation of transportation
facilities, equipment or real property operated by or
under contract, lease or other arrangement" with MTA.
N Y Pub. Auth. L. § 1266(1)-(8).