The opinion of the court was delivered by: Wexler, District Judge.
This is a case brought pursuant to, inter alia, the Federal
Employers Liability Act, 45 U.S.C. § 51 ("FELA"). Plaintiff Sean
Greene ("Plaintiff") is a police officer who, at the time of his
alleged injury, was employed by the Metropolitan Transit
Authority ("MTA"). Plaintiff alleges that he suffered an on the
job injury when he was a passenger in a Jeep used as a
surveillance vehicle to patrol a Long Island Railroad ("LIRR")
Presently before the court is the motion of defendants MTA and
LIRR for summary judgment. MTA that argues it cannot be liable
under FELA because it is not a common carrier within the meaning
of the statute. While the LIRR concedes that it is a common
carrier, it seeks summary judgment on the ground that it was
neither Plaintiff's employer nor was Plaintiff a "borrowed
servant" of the LIRR at the time of the injury.
As discussed below, the court holds, reluctantly, that the MTA
is a common carrier and, consequently, that Plaintiff may seek
recovery pursuant to FELA for his on the job injury. The court's
reluctance comes not from any sense that the common carrier
question is close. It arises, instead, from the court's
conviction that FELA's liability standard regarding railroad
workers injured on the job is one that has become outmoded.
In a time when other workers, including those involved in far
more hazardous situations, are covered by a comprehensive scheme
of workers' compensation benefits, it is archaic and unwarranted
for railroad workers to be entitled to a different standard that
takes them outside of the realm of the typical employee.
Municipal police officers and firefighters are engaged in
professions that daily subject them to situations far more
dangerous than that of the typical railroad worker. Yet, if these
individuals, who put their lives at peril every day, are injured
on the job, they are covered by workers compensation benefits.
Each and every railroad worker, on the other hand, from the
ticket taker to the administrative office worker, may collect
damages under FELA, for an on the job injury. In such cases, the
railroad employee is entitled to recover by showing that their
injury is attributable to the negligence, however slight, of
their employer. See Williams v. Long Island Railroad Co.,
196 F.3d 402, 406-07 (2d Cir. 1999).
While a statutory scheme aimed at protecting railroad workers
from the "physical dangers of railroading" may have been
necessary in 1908, when FELA was passed, that is no longer the
case. In the absence of a change in the statute, however, this
court is powerless to carve out exceptions to the Supreme Court's
broad and longstanding definition of what constitutes a common
carrier subject to FELA — a definition that, in this court's
view, clearly encompasses the interstate operations of the MTA.
I. The Parties and the Accident
As noted above, Plaintiff was, at the time of his injury, a
police officer employed by the MTA. The MTA is a public benefit
corporation created pursuant to the Public Authorities Law of the
Sate of New York. See N.Y. Pub. Auth. L. § 1264. The LIRR,
which also exists pursuant to the New York State Public
Authorities Law, is one of the wholly owned commuter railroad
subsidiaries of the MTA.
Prior to 1997, the LIRR maintained its own police force.
Beginning in 1997, New York law empowered the MTA to provide and
maintain an MTA police force. LIRR police officers like
Plaintiff, were, beginning in 1998, appointed to the newly
established MTA police force. Thus, as of March 4, 1998, at the
time of the accident forming the basis of Plaintiff's complaint,
Plaintiff became an employee of the MTA and was no longer
employed by the LIRR.
At the time of the accident Plaintiff was riding with his
partner, police officer Wyckoff, in an unmarked Jeep used for
surveillance purposes by MTA police officers assigned to the
LIRR. Wyckoff and Plaintiff were responding to a call regarding
auto theft at the Ronkonkoma, New York LIRR station. En route,
the Jeep collided with a car driven by defendant Barbara Arias
and owned by defendant Thelma Schulman. Plaintiff seeks damages
as compensation for the injuries allegedly suffered as a result
of this accident.
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.
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 ...