Myrick v. Union Pacific Railroad Co. , 2017 IL App (1st) 161023 ( 2017 )

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Appellate Court Date: 2017.10.17
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Myrick v. Union Pacific R.R. Co., 2017 IL App (1st) 161023
Appellate Court CHEVAS MYRICK, Plaintiff-Appellant, v. UNION PACIFIC
Caption RAILROAD COMPANY and THE BELT RAILWAY COMPANY
OF CHICAGO, Defendants-Appellees.
District & No. First District, Second Division
Docket No. 1-16-1023
Rule 23 order filed June 30, 2017
Rule 23 order
withdrawn July 19, 2017
Opinion filed July 25, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 13-L-3174; the
Review Hon. Edward Washington II, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Hoey & Farina, P.C., of Chicago (Matthew F. Liebert, Richard A.
Appeal Haydu, and Steven P. Garmisa, of counsel), for appellant.
Elizabeth A. Graham and Robert J. Gibbons, Corporation Counsel, of
Chicago, for appellees.
Panel JUSTICE PIERCE delivered the judgment of the court, with opinion.
Presiding Justice Hyman and Justice Mason concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff, an employee of Union Pacific Railroad Company (Union Pacific), sustained
injuries to his leg while he was assigned to work in a rail yard operated by the Belt Railway
Company of Chicago (Belt Railway). Plaintiff alleged that he was dropped off by a Belt
Railway employee at an unlit, hazardous location, and that while he was walking from the drop
off location to his destination, he stepped in a snow-covered hole. Plaintiff’s first amended
complaint asserted claims against Union Pacific and Belt Railway under the Federal
Employers’ Liability Act (FELA) (45 U.S.C. § 51 (2012)) and a negligence claim against Belt
Railway. 1 Lawanda Myrick, Chevas Myrick’s wife, asserted a loss of consortium claim
against Belt Railway.2 The circuit court granted defendants’ pretrial motion in limine to bar
plaintiff from introducing evidence that there were safer alternative locations where he could
have been dropped off. Plaintiff made an offer of proof regarding the alternative drop off
locations. The jury returned a verdict in favor of defendants. Plaintiff’s motion for a new trial
was denied, and plaintiff appeals. For the following reasons, we reverse and remand for a new
trial.
¶2 BACKGROUND
¶3 Chevas Myrick, a freight conductor, filed a complaint, seeking damages for injuries he
allegedly sustained while working for Union Pacific at a facility operated by Belt Railway
(collectively, defendants). In count I of Myrick’s first amended complaint, he asserted a claim
under the FELA against Union Pacific. He alleged that on March 7, 2013, while performing his
duties as a “trainman/conductor,” he was sent by Union Pacific to a Belt Railway facility to
build a train and prepare it for departure. When Myrick finished building the train, Belt
Railway transported him to “an area between rail tracks in the rail yard which required [him] to
walk across a number of railroad tracks to reach [the] locomotive” so that it could be moved
out of Belt Railway’s yard. Myrick alleged that the ground was uneven and covered by 3 to 18
inches of snow, and that while he was walking from the drop off location to the locomotive, he
stepped “into a hole under the snow in the walkway between the tracks,” resulting in injuries.
The complaint alleged that Union Pacific had a duty “to use ordinary care in furnishing
[Myrick] with a safe place to work, even when required to go into property owned and operated
by third parties.” Myrick alleged, in relevant part, that Union Pacific was negligent by failing
to have him “properly and safely transported to the engine,” and “[o]therwise, fail[ing] to
provide [Myrick] with a reasonably safe place to work.”
¶4 Count II asserted a FELA claim against Belt Railway, alleging that at the time he was
injured, Myrick “was acting as a borrowed servant” or alternatively, “acting for two masters.”
1
Neither party addresses whether Myrick’s common law negligence claim is preempted by FELA.
2
This claim is not at issue in this appeal, and Lawanda is not a party to this appeal.
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Count II alleged that Myrick was dropped off “several hundred feet” from the train’s engine
and that while walking across the rail tracks, he stepped into a hole covered by snow, causing
him injuries. He alleged that Belt Railway had a duty to “provide [Myrick] with a reasonably
safe place to work, to provide reasonably safe conditions in which to work, to exercise ordinary
care to avoid placing [Myrick] in danger and to exercise ordinary care on its property in
operations for the safety of [Myrick].” He alleged, in relevant part, that Belt Railway was
negligent for “[f]ail[ing] to deposit [Myrick] at a safe location adjacent to the locomotive.”
¶5 Count III asserted a negligence claim against Belt Railway, alleging that instead of driving
Myrick “onto a vehicular road *** which would have deposited [Myrick] directly adjacent to
the locomotive engine, as was the customary procedure, [the] trainmaster deposited [Myrick]
in an area between rail tracks in the rail yard which required [Myrick] to walk across a number
of railroad tracks to reach the train.” Myrick alleged that Belt Railway had a duty to use
ordinary care for his safety, and was negligent, in relevant part, for “[f]ailing to transport [him]
to a safe location to access the engine,” and “provide [him] with a reasonably safe place to
work.”
¶6 Defendants answered the first amended complaint, and the case proceeded to a jury trial.
Prior to trial, defendants moved in limine to bar “the introduction of any evidence that
[Myrick] should have been dropped off in a ‘better’ or ‘safer’ location.” Defendants argued
that “railroad employers are not required to furnish their employees with the latest, best, and
most perfect equipment or methods with which to work,” and that the relevant inquiry under
FELA is whether the railroad “exercised reasonable care in fulfilling its duty to provide a
reasonably safe workplace and reasonably safe methods, not whether the procedures could
have been made ‘safer.’ ” Defendants asserted that “[o]nly if plaintiff can present evidence
establishing that the location where he fell was not reasonably safe should he prevail.”
¶7 In his written response to defendants’ motion in limine, Myrick argued that defendants had
a duty to use ordinary care to provide him with a reasonably safe place to work. He argued that
his testimony would show that he was “customarily driven on different path [sic] outside the
yard on a roadway” and that March 7, 2013, was the first time that defendants had dropped him
off in the area where they did. He argued that defendants “ignored” their “normal procedure”
in favor of “the less safer [sic] alternative.”
¶8 After oral argument, the circuit court found that “the focus should be on where the accident
happened,” since neither FELA nor a common law negligence claim requires a defendant to
explain “why they didn’t drop him off someplace else.” The circuit court observed that Myrick
would have “ample opportunity” to show how defendants’ decision as to where Myrick was
dropped off was negligent and that it “was not a good place to drop him off.” The circuit court
explained that even if the location where Myrick was dropped off was the only place that
defendants could have dropped him off, defendants still had a duty to make it safe. The circuit
court granted defendants’ motion in limine.
¶9 At trial, Myrick testified that one of his regular job responsibilities as a Union Pacific
freight conductor was to perform “transfer jobs.” In a transfer job, Union Pacific transports its
employees to another railroad’s switching facility. There, the Union Pacific employees
assemble a train under the supervision and control of the other railroad’s managers, and then
move the train to Union Pacific’s facilities. Myrick had done transfer jobs at various times over
his 15-year employment, and it was a regular assignment for several months prior to the
accident. On March 6, 2013, Myrick began work at around 9 p.m. at Union Pacific’s facility in
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Northlake. Union Pacific assigned Myrick to do a transfer job at Belt Railway’s Chicago
facility. He was taken by a “cab” to the Belt Railway facility. The Union Pacific crew
assembled the Union Pacific train on the “main line track.” Myrick requested the Belt Railway
yardmaster to call for a cab to take Myrick to the head of the train. However, after a 20 to 30
minute wait, Belt Railway told Myrick that no cabs were available and that he would have to
walk to the locomotive.
¶ 10 While Myrick was walking, Mark Labbe, the Belt Railway trainmaster, picked Myrick up
in a Jeep, drove him closer to the head of the train where he dropped him off about 25 railcars
from the locomotive. Labbe selected the drop off location. Myrick stated that it was dark
outside and that the only light in the area was from the lantern that he had with him. The snow
was about two feet deep. Myrick testified that it was not an area where he would normally walk
and that the ground was uneven. After crossing two sets of tracks, Myrick stepped on the
shoulder of the track and his foot went into a snow-covered trench injuring his leg.
¶ 11 Labbe testified that it was not unusual for him to give crews rides in the yard. When he
picked Myrick up, they were about a half mile from the locomotive. There was snow on the
ground, and the road Labbe was driving on had been partially plowed, however, the area where
he dropped Myrick off had not been plowed. Labbe testified that he dropped off daytime crews
“a few times” during that winter at the same location where he dropped off Myrick, that it was
“the most efficient,” and “it was the most common sense area to drop him off at.”
¶ 12 Myrick’s coworker, Wiley Brown, had never seen Belt Railway drop a worker where
Labbe dropped Myrick that day, and on previous occasions when the locomotive was in a
similar location as the date of the accident, Belt Railway would drop the conductor under the
Harlem Avenue bridge on a road adjacent to the tracks.
¶ 13 Belt Railway’s track supervisor in charge of snow removal, Robert Ward, testified that the
area where Myrick was dropped off had been “left to go natural,” and that Belt Railway did not
plow that area because transportation employees like Myrick did not typically work there.
Where the injury occurred, the tracks were sloped because they were main line tracks, which
are different from yard tracks, where transportation employees typically work, which are flat.
¶ 14 Myrick made the following offer of proof regarding alternative drop off locations:
“Q. Now, the area that you were dropped off, was that the normal area you had been
dropped off before?
A. No.
Q. Had you ever been dropped off there before?
A. No.
Q. Were there different areas where you had been dropped off when your train was
in the area where it was on the night in question?
A. Yes.
Q. I’m showing you Plaintiff’s Exhibit No. 5, a statement prepared by your
foreman in training, Mr. [Wiley] Brown. It indicates that you told him that they should
have took [sic] you to Argo to be dropped off. Do you see that?
A. That’s correct.
Q. Where is Argo in relationship to where your engines were?
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A. Argo is on the main line where our train leaves whatever designated area it’s in.
They would put me in a cab or a manager will take me to Argo, which is at Proviso
East, and the signal is there. Once the dispatcher give the [sic] train the signal, the train
will pull up, I get out the cab [sic] and I board the train. Which is on level ground. It’s
like a bus terminal.
Q. And how far does the cab drop you off from the train that comes to get you?
A. It will be about maybe 3, 4 miles.
Q. When the train drops you off at Argo, how far is that from the tracks?
A. It’s probably a few feet.
Q. Has that been done before in the winter?
A. All the time.
Q. Does that have uneven ground?
A. No.
Q. Is it well lit?
A. Well, if it have uneven [sic] ground, it’s when I’m boarding but I’m on the
shoulder of the track.
Q. Does that require you to walk across any surfaces—
A. Not at all.”
¶ 15 Myrick stated that there were two alternative areas that were routinely used for a drop off
when the train was located where it was on the day of the accident: the Argo site or a roadway
adjacent to the tracks located under the Harlem Avenue bridge. Typically, either Belt Railway
would call a cab or one of his supervisors would take him to the Argo site. Once he was at the
Argo site, the Belt Railway dispatcher would signal the train to proceed, and when it
approached Myrick, he would leave the cab and board the train from level ground “like a bus
terminal” only a few feet from the cab. If Belt Railway had called for a cab, the driver would
have taken him to Argo because, “[t]hey know the rules. They’re not going to put me in a
situation because they don’t want to put themselves in a situation.” Myrick testified that if
there was snow, Belt Railway would use the Argo location as the drop-off site.
¶ 16 Myrick also described a second alternative drop-off location where he had previously been
dropped off: under the Harlem Avenue bridge. Myrick testified that the road under that bridge
could be used to access a well lit drop-off area that Belt Railway kept plowed during the
winter. Wiley Brown, who was the foreman in training on March 7, 2013, testified as part of
the offer of proof that conductors “normally” used the road under the Harlem Avenue bridge to
access the second alternative drop off location.
¶ 17 The jury returned a verdict in favor of defendants. Myrick moved for a new trial, arguing
that the alternative drop-off locations were both relevant and admissible. He argued that under
the Restatement (Second) of Torts and Illinois case law, evidence of custom and practice was
admissible to establish what a reasonably prudent railroad would have done under the
circumstances, and that the circuit court’s ruling on defendants’ motion in limine was “clearly
wrong.” The circuit court denied the motion, and Myrick filed a timely notice of appeal.
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¶ 18 ANALYSIS
¶ 19 On appeal, Myrick argues that the circuit court abused its discretion as a matter of law by
“failing to apply Illinois evidence law regarding admissibility of custom and practice evidence
to establish the standard of care,” since the procedural rules of the forum apply in FELA cases
brought in state court. He further argues that our review is de novo because the circuit court’s
decision to exclude evidence that Belt Railway previously dropped off employees at other
safer alternative locations was based on an erroneous conclusion of law that deprived the jury
of the necessary factual context to determine the applicable standard of care.
¶ 20 Defendants argue, however, that the admissibility of evidence regarding alternative
drop-off locations is governed by federal law because it “relates to the duty imposed under
FELA on [d]efendants, which is unquestionably a substantive, rather than a procedural, legal
question.” They contend the standard of review is for an abuse of discretion because the circuit
court did not ignore or misapply any clear, bright-line rule.
¶ 21 We generally review a circuit court’s evidentiary rulings for an abuse of discretion.
Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 92 (1995). A circuit court abuses its
discretion only if it acts arbitrarily without the employment of conscientious judgment,
exceeds the bounds of reason and ignores recognized principles of law, or if no reasonable
person would take the position adopted by the court. Schmitz v. Binette, 368 Ill. App. 3d 447,
452 (2006). If a circuit court’s decision rests on an error of law, then it is clear that an abuse of
discretion has occurred, as it is always an abuse of discretion to base a decision on an incorrect
view of the law. Silverberg v. Haji, 2015 IL App (1st) 141321, ¶ 34 (citing People v.
Porter-Boens, 2013 IL App (1st) 111074, ¶ 10). To determine whether the circuit court applied
the wrong legal standard in exercising its discretion requires us to first determine the correct
legal standard, which is a question of law that we review de novo. Shulte v. Flowers, 2013 IL
App (4th) 120132, ¶¶ 23-24.
¶ 22 To prevail in an action under FELA, Myrick needs to prove the traditional common law
elements of negligence: duty, breach, causation, and damages. Borger v. CSX Transportation,
Inc., 571 F.3d 559, 563 (6th Cir. 2009); Consolidated R. Corp. v. Gottshall, 512 U.S. 532, 538
(1994). Federal common law governs substantive matters, including what constitutes
negligence under FELA (Urie v. Thompson, 337 U.S. 163, 174 (1949)); the burden of proof on
the merits (Central Vermont Ry. Co. v. White, 238 U.S. 507, 510-11 (1915)); the sufficiency of
the evidence (Brady v. Southern Ry. Co., 320 U.S. 476, 479 (1943), abrogated on other
grounds by CSX Transportation, Inc. v. McBride, 564 U.S. 685 (2011)); and the substantive
law to be conveyed in the jury instructions (Norfolk & Western Ry. Co. v. Liepelt, 444 U.S.
490, 493 (1980)). The negligence of the employer may be determined by viewing its conduct
as a whole. Blair v. Baltimore & Ohio R.R. Co., 323 U.S. 600, 604 (1945).
¶ 23 When a FELA action is brought in state court, the law of the forum governs procedural
matters. Central Vermont Ry., 238 U.S. at 511. This includes state procedural rules governing
pleadings, verdicts, the form of the jury instructions, and the admissibility of evidence, unless
the application of a state rule diminishes, destroys, or interferes with a right or obligation
created by FELA. See CSX Transportation, Inc. v. Begley, 313 S.W.3d 52, 59-60 (Ky. 2012)
(collecting cases); see also Noakes v. National R.R. Passenger Corp., 363 Ill. App. 3d 851, 854
(2006) (citing Marlowe v. Atchison, Topeka & Santa Fe Ry. Co., 671 P.2d 438, 442 (Colo.
App. 1983)); CSX Transportation, Inc. v. Miller, 858 A.2d 1025, 1059 (Md. Ct. Spec. App.
2004) (“In a FELA case being tried in a state court, the state court will apply federal
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substantive law but state procedural law, including the state law of evidence.”); Norfolk
Southern Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 101 (Ind. Ct. App. 2005) (“When FELA
actions are adjudicated in state courts, they follow state procedural rules, even though the
proceedings are governed by federal substantive law.”); Dalka v. Wisconsin Central, Ltd.,
2012 WI App 22, 339 Wis. 2d 361, 811 N.W.2d 834 (applying state rules of evidence
regarding admissibility of evidence in a FELA case).
¶ 24 In granting plaintiff’s motion in limine, the circuit court stated that it had reviewed the
cases cited by the parties and determined that the “focus should be on where the accident
happened” because “to do otherwise would *** impose an additional burden on the defendant
that is not required under FELA *** to start explaining why they didn’t drop him off
someplace else when they don’t really have to do that” and that “there’s no obligation to put
him at this other alternative site.” The circuit court stated that the plaintiff would have “ample
opportunity” to show how defendants’ decision as to where Myrick was dropped off was
negligent. These remarks suggest that the circuit court did not believe that evidence regarding
alternative drop-off locations was relevant.
¶ 25 In considering Myrick’s contention that testimony about the two alternative drop-off sites
was admissible to prove the standard of care, we observe that it is undisputed that “[a]ll
relevant evidence is admissible, except as otherwise provided by law. Evidence which is not
relevant is not admissible.” Ill. R. Evid. 402 (eff. Jan. 1, 2011). Evidence is relevant if it has
“any tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would without the evidence.” Ill. R. Evid. 401
(eff. Jan. 1, 2011). Relevant evidence may be excluded if “its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”
Ill. R. Evid. 403 (eff. Jan. 1, 2011).
¶ 26 We agree with Myrick that Illinois evidence law governs the procedural process of
admitting evidence in a FELA case brought in Illinois. We also agree with defendants that
federal law is determinative of whether conduct is negligent under FELA. We therefore look to
federal law to determine what constitutes relevant evidence of negligence in a FELA case, and
then apply our own rules of evidence governing admissibility, provided they do not diminish,
destroy, or interfere with any federal right under FELA.
¶ 27 We find Stone v. New York, Chicago & St. Louis R.R. Co., 344 U.S. 407 (1953) instructive
on the issue of whether Myrick’s evidence of alternative locations used by Belt Railway to
drop off employees is relevant under the facts of this case, and whether the jury should have
considered this evidence in deciding whether the railroad was negligent. In Stone, railroad
workers were tasked with removing old railroad ties, which usually required two men using
tongs, but could require up to four men. Id. at 408. The evidence showed that there were three
other possible methods for safely removing a stubborn tie. Id. When the plaintiff and another
man encountered a stubborn tie, rather than using one of these other three methods, the “straw
boss” instructed the plaintiff to pull harder. Id. Plaintiff pulled on the tie and sustained injuries
to his back. Id. Plaintiff sued the railroad under FELA, and a jury returned a verdict in his
favor. Id. at 407.
¶ 28 The Missouri Supreme Court reversed, finding that the plaintiff had failed to establish
triable issues regarding negligence or causation, since “there was no evidence that defendant’s
methods were not reasonably safe,” and “[t]here was no evidence that plaintiff exerted more
strength because of lack of sufficient help.” Stone v. New York, C. & St. L. R. Co., 249 S.W.2d
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442, 449 (Mo. 1952). The United States Supreme Court reinstated the verdict, finding that the
case was “peculiarly one for the jury.” Stone, 344 U.S. at 409. The Court stated that “[w]hether
the straw boss in light of the risks should have used another or different method to remove the
tie or failing to do so was culpable is the issue.” Id. This created a “debatable issue on which
fair-minded men would differ.” Id. The Court further noted that:
“The experience with stubborn ties, the alternative ways of removing them, the
warning by [plaintiff] that he had been pulling as hard as he could, the command of his
superior to pull harder, the fact that more than two men were usually used in these
circumstances—all of these facts comprise the situation to be appraised in determining
whether [the defendant] was negligent. Those circumstances were for the trier of fact to
appraise.” Id. at 409-10.
Although Stone did not involve a question of admissibility of evidence regarding alternative
methods, the Court determined that the plaintiff had presented sufficient evidence to warrant
submitting the case to the jury on the issue of negligence and causation, since there was a
“debatable issue on which fair-minded men would differ” as to whether the defendant was
negligent.
¶ 29 In Stone, the Court reasoned that evidence of the three alternative methods to safely
remove a tie was relevant to the issue of whether the method employed by the straw boss was
negligent under all of the circumstances presented. In a similar vein, Myrick’s proposed
evidence that the railroad had available to it two separate and safer locations should have been
considered by the jury in its determination of whether the defendants acted reasonably under
the circumstances existing at the time of the injury. As Myrick argues, if presented with
evidence concerning the Argo and Harlem Avenue sites, the jury could have reasonably
concluded that Belt Railway was negligent in providing a safe work place by (1) dropping
Myrick at an unlit location that had an uneven surface with two feet of snow covering the
railroad tracks and (2) not dropping Myrick at one of the two other locations available to it at
the time of the injury, locations that were frequently used, well lit with an even surface, and
relatively free of snow. Without this evidence, the jury was denied relevant evidence to
compare what available options the defendants had to determine whether defendants acted
reasonably by dropping him off where he was dropped off. Under FELA, the “slightest”
evidence of negligence is sufficient to find liability. Rogers v. Missouri Pacific R.R. Co., 352
U.S. 500, 506 (1957). Here, Myrick was deprived of a fair opportunity to present relevant
evidence that would assist the jury in making a determination of whether a breach of the
standard of care was more probable or less probable.
¶ 30 Several courts applying Stone have allowed evidence of safer alternative methods because
such evidence is or may be relevant to the issue of reasonable care. See, e.g., Prescott v. CSX
Transportation, Inc., No. CV512-013, 2013 WL 1192820 (S.D. Ga. Mar. 22, 2013); Williams
v. Northeastern Illinois Regional Commuter R.R. Corp., No. 00 C 2250, 2002 WL 1433724
(N.D. Ill. June 28, 2008); Edsall v. CSX Transportation, Inc., No. 1:06-CV-389, 2007 WL
4608788 (N.D. Ind. Dec. 28, 2007); Uhl v. CSX Transportation, Inc., No. 3:08-0064, 2009 WL
1749372 (S.D. W. Va. June 18, 2009); Robinson v. CSX Transportation, Inc., 103 So. 3d 1006
(Fla. Dist. Ct. App. 2012).
¶ 31 Defendants argue, however, that under Stillman v. Norfolk & Western Ry. Co., 811 F.2d
834 (4th Cir. 1987), evidence of the alternative drop-off locations was not admissible because
the question for the jury was whether the railroad exercised reasonable care for Myrick’s
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safety, not whether defendants could have employed safer methods for performing the task of
transporting employees to their destinations. The circuit court found Stillman persuasive in
denying Myrick’s attempt to introduce evidence of the alternative locations. Our review of
relevant case law finds that reliance on Stillman was misplaced and that it was error to bar the
proffered evidence.
¶ 32 In Stillman, the plaintiff worked for a railroad installing gears in railroad cars. To perform
this task, the gears were attached to chains, which were then hooked on to the blades of a
forklift and lifted up so that the gears could be placed in the railroad cars. Id. at 836. While
plaintiff was performing this task, the forklift stopped working. The plaintiff placed himself
under the suspended gear while trying to free the chain from the blades, and the forklift’s
blades fell and injured him. Id. He sued under FELA, and at the jury trial, plaintiff sought to
introduce evidence that using overhead cranes would have been a safer way to install the gears.
Id. at 838. The plaintiff had introduced “essentially all” of the testimony regarding his
alternative method testimony before the circuit court sustained the railroad’s objection. The
district court excluded the evidence, reasoning that the focus was on “whether the Railroad had
exercised reasonable care, not whether the procedures used by the Railroad could have been
made safer.” Id. The district court did not instruct the jury to disregard the testimony it heard
about plaintiff’s alternative method. The Court of Appeals for the Fourth Circuit affirmed,
finding that it was within the district court’s discretion to exclude the plaintiff’s irrelevant
testimony “concerning the alternative gear installation method.” Id.
¶ 33 Our view of Stillman is that it does not stand for the proposition that evidence of alternative
methods is always inadmissible to prove negligence. Stillman and its progeny stand for the
proposition that, while an employer has a duty to provide a reasonably safe work environment,
the provision of certain tools or the utilization of a particular method of doing a task is not
negligent simply because the employer failed to provide or utilize a better or safer method of
performing a task. See Combs v. Norfolk & Western Ry. Co., 807 S.E.2d 355, 359 (Va. 1998)
(observing that Stillman involved “a party’s attempt to prove negligence ‘in a vacuum’ by
showing that safer equipment could have been used, irrespective of whether the equipment
actually used met the standard of reasonable care”); see also McKennon v. CSX
Transportation, Inc., 897 F. Supp. 1024, 1026-27 (M.D. Tenn. 1995) (rejecting plaintiff’s
argument that defendant was negligent for refusing to use an available automated method of
performing a task where the method actually used was safe and appropriate).
¶ 34 Under the reasoning in Stone, evidence of an alternative method of performing a task may
be relevant if it is offered to show that the method actually used fell below the standard of care.
The principle in Stillman may be invoked to bar evidence of alternative methods of performing
a task when there has been no showing that the method actually employed was unsafe. In other
words, a plaintiff cannot attempt to prove the defendant’s negligence by pointing to alternative
methods without first offering some evidence that the method used was negligent. Once a
plaintiff comes forward with some evidence that the method actually employed was not
reasonably safe, he may then seek to introduce evidence that safer alternative methods existed,
that those methods were available at the time, and that they had been used under similar
circumstances, since that evidence may be relevant to whether the method actually used was
reasonable under all of the circumstances. See Williams, 2002 WL 1433724, at *9 (“Only
when it is determined that the railroad exercised reasonable care is testimony regarding safer
alternatives properly excluded.”).
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¶ 35 In Prescott, 2013 WL 1192820, at *5, the district court denied as premature the defendant’s
motion in limine to bar references to alternative, safer methods after observing that such
evidence could be relevant to the issue of reasonable care, a point which CSX’s own motion
acknowledged. That court stated that it would “determine the admissibility of any such
evidence offered at trial in accordance with the applicable rules.” Id.; see also Cook v. CSX
Transportation, Inc., No. 6:06-cv-1193-Orl-19KRS, 2008 WL 2275544, at *3 (M.D. Fla. June
2, 2008) (same).
¶ 36 In Williams, the plaintiff was injured while using a sledgehammer to break concrete on a
railroad platform. Metra moved for summary judgment, claiming it had no notice that a
sledgehammer was unsafe for breaking concrete. Plaintiff produced evidence in discovery
showing that if either of his superiors had known that concrete would be encountered, they
would have provided Williams with either a hiltie or a jackhammer. The district court denied
Metra’s motion for summary judgment because “Williams has brought forth enough evidence
to question whether Metra’s use of the sledgehammer was reasonable and whether a safer
alternative method was available.” Williams, 2002 WL 1433724, at *8. In part, the district
court rejected Metra’s argument that the sledgehammer was “the safest tool to use on the job”
because witnesses established that this tool “may not have been the appropriate tool for
breaking up the concrete.” Id. at *8-9 (plaintiff is permitted “to bring forth evidence of safer,
alternative methods to show that the defendant was negligent in not providing such methods”
(citing Stone, 344 U.S. at 409)). The district court concluded that “Stone requires that the trier
of fact determine whether the method was reasonable. [Stone,] 344 U.S. at 409. Only when it is
determined that the railroad exercised reasonable care is testimony regarding safer alternatives
properly excluded. Stillman, 811 F.2d at 838.” Id. at *9. The district court found that
Williams’s evidence—consisting of a supervisor who said a jackhammer is often used to break
concrete and an expert who said plaintiff should have been provided a jackhammer, a
sledgehammer is more difficult to control, and a jackhammer or similar tool should have been
used on the concrete instead—was sufficient to find that “the sledgehammer’s safety and the
availability of a safer alternative are genuine issues of material fact that prohibit a finding of
summary judgment.” Id.
¶ 37 Williams was cited with approval in Edsall, 2007 WL 4608788. Edsall injured his back
pulling spikes with a claw bar because a hydraulic spike puller had been in the repair shop for
several weeks. Edsall claimed that if he had “the proper tool,” he would not have used the claw
bar and he would not have been injured. Id. at *2. Defendant claimed that Edsall failed to prove
it was negligent in providing a reasonably safe work environment because Edsall’s argument
was that it failed to provide a “ ‘safer’ or preferred alternative for pulling spikes does not mean
that what it did give him, the claw bar, was unreasonably unsafe.” Id. at *3. The district court
determined, however, that “the issue of what is reasonably safe cannot be viewed in a factual
vacuum.” Id. at *4. The district court concluded that:
“As this Court has previously observed, a FELA defendant has a duty ‘to exercise
reasonable care in providing a reasonably safe place to work, reasonably safe
conditions in which to work and reasonably safe tools and equipment.’ [Citation.] On
this record, it must be left to the jury to determine whether CSXT was reasonable in
providing Edsall with only a claw bar to pull a spike from a new tie in an area it knew
was freshly damaged from a derailment and thus likely to contain poor footing. Part of
that analysis necessarily entails an examination of the alternative method for removing
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such a spike, [citation]; that is, a machine that if it had been available on February 26,
2004, would have afforded Edsall with an arguably safe way to approach the situation
involving the third spike. Altogether, whether CSXT provided Edsall with a reasonably
safe place to work under the circumstances is ‘peculiarly for the jury.’ Stone, 344 U.S.
at 409.” Id. at *5.
¶ 38 Williams and Edsall were both cited with approval in Uhl, 2009 WL 1749372. In Uhl, the
plaintiff was injured while boarding a locomotive, and he intended to present evidence that
there was a safer alternative location to board the train. Id. at *5. The railroad moved in limine
to bar plaintiff’s evidence, contending such evidence was irrelevant, principally relying on
Stillman. The district court denied the railroad’s motion and relied on Stone to explain that the
issue was whether the railroad exercised reasonable care. Id. at *7. The Uhl court noted that
Stillman presented a different factual scenario, since Stillman’s trial evidence indicated that the
defective forklift appeared to be an isolated event and that exclusion of evidence of safer
alternatives is proper only where it is determined that the railroad exercised reasonable care.
Id. The district court found that Uhl “represents that he will introduce evidence that requiring
him to board locomotives at the location where his alleged injury occurred constituted an
unreasonably safe method of carrying out that task” and that the case “involves a dispute as to
whether the railroad exercised reasonable care.” Id. The district court concluded that “the jury
should be given the benefit of considering alternative boarding locations to aid it in arriving at
an answer.” Id.
¶ 39 The facts in Uhl and those proffered by Myrick differ only in that Uhl boarded a train in an
allegedly unsafe location when a safer alternative location was available, whereas Myrick got
off the train in an allegedly unsafe location when two safer alternative locations were available.
And, like the analysis and ruling in Edsall, in this case “part of the analysis” of whether
defendants provided a reasonably safe place to work under reasonably safe conditions
necessarily entails an examination by the jury of “the alternative method” for transporting
Myrick to the engine. The jury should have been allowed to consider the evidence of the other
available drop-off locations that the defendants had previously used to determine whether it
was reasonable for defendants to drop Myrick off in the location where he was dropped off, or
in other words, whether dropping Myrick off at either Argo or Harlem Avenue would have
afforded him a reasonably safe place to work.
¶ 40 Robinson, 103 So. 3d 1006, is also instructive. There, the appellate court reversed a defense
verdict involving a plaintiff who was injured when his train collided with a truck. Plaintiff
alleged that the railroad failed to provide him with certain safety tools regularly used in
performing his job that would have allowed him to avoid the collision. The trial court excluded
evidence regarding the railroad’s failure to provide those safety tools. The appellate court
reversed, finding that “[t]he evidence was relevant—regardless of whether the tools were
immediately available on the day of the accident—because it tended to prove that CSX
breached its duty to provide a safe workplace by failing to make the tools available, despite
their general use in the industry.” Id. at 1009. See also Gorman v. Grand Trunk Western R.R.,
Inc., No. 2:07-cv-12911, 2009 WL 2448604, at *6 (E.D. Mich. Aug. 10, 2009) (noting that
“whether any given arrangement is reasonably safe cannot be determined *** without any
consideration of possible alternative arrangements. Instead, whether the conditions of a
workplace are reasonably safe depends on a comparison of the marginal benefits and costs of
an available safer alternative.”).
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¶ 41 Here, the circuit court found that evidence of alternative drop-off locations was not
relevant to the issue of whether defendants’ conduct was reasonable under the circumstances.
Myrick’s theory of liability was that the location where he was dropped off was unsafe and that
dropping him off at that location under poor conditions was a breach of defendants’ duty
because a reasonably prudent railroad would have used available and safer alternative drop-off
locations. He presented at least some evidence from which a jury could conclude that
defendants’ conduct in dropping him off in an unfamiliar, unlit, uneven, and snow-covered
location was negligent. He therefore should have been permitted to introduce evidence that
there were alternative, previously-used and available drop-off locations to show that
defendants failed to act as a reasonably prudent railroad under all the circumstances. Similar to
Williams and Uhl, Myrick was arguably dropped off at an unsafe location when the railroad
knew or should have known that safer locations at Harlem Avenue or Argo were available to
drop plaintiff. Robinson and Gorman further support a finding that alternative drop-off
locations are relevant under FELA. By applying the reasoning in Stillman, the circuit court
applied the wrong legal standard with respect to relevancy and therefore abused its discretion
in granting defendants’ motion in limine and in denying Myrick’s motion for a new trial.
Where the circuit court’s error is one of law, we remand for a new trial. Tankersley v. Peabody
Coal Co., 31 Ill. 2d 496, 504 (1964).
¶ 42 CONCLUSION
¶ 43 The circuit court applied the wrong legal standard in considering plaintiff’s evidence of
alternative drop-off locations, and thus abused its discretion in granting the defendants’ motion
in limine to bar that relevant evidence and in denying Myrick’s motion for a new trial. These
errors warrant a new trial.
¶ 44 The judgment of the circuit court is reversed, and this matter is remanded for a new trial.
¶ 45 Reversed and remanded.
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