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  • March 07, 2024

    Different Standard of Foreseeability under Federal Employer’s Liability Act

    An injured worker who sues under the Federal Employers’ Liability Act need not show that the specific chain of events that led to his or her injury was reasonably foreseeable, the Wisconsin Court of Appeals ruled.

    Jeff M. Brown

    Two Male Workers, Clad In Orange HardHats and Yellow High Viz Vests, Stand Between A Row of Railroad Cars With Their Backs To The Camrea, With The Cars Stretching Away Into The Distance

    March 7, 2024 – An injured worker who sues under the Federal Employers’ Liability Act need not show that the specific chain of events that led to his or her injury was reasonably foreseeable, the Wisconsin Court of Appeals ruled in Besiada v. Wisconsin Central, Ltd., 2023AP562 (Feb. 21, 2024).

    Wisconsin Central Ltd., (Wisconsin Central) a rail carrier, employed Bruce Besiada at its yard in Stevens Point.

    Besiada was required to inspect incoming railcars for defects, including bent handholds. The handholds are rungs that allow workers to climb up the sides of the railcar.

    Wisconsin Central instructed employees who discovered bent handholds when inspecting inbound cars to straighten them.

    The Blue Bar

    Besiada and other Wisconsin Central employees used a repair tool called a blue bar to straighten bent handholds.

    The blue bar is a ratcheting pry bar with hooks that lock onto the handhold and a wheel that enables the user to pivot and put his or her weight into bending the handhold back straight.

    Wisconsin Central had instructed employees to fix bent handholds in the following manner:

    • climb the handholds below the bent handhold;

    • reach above your head and hook the blue bar on the bent handhold; and

    • use leveraged force to bend the handhold back into shape.

    Wisconsin Central’s safety rules require employees to maintain three points of contact – two feet and one hand or two hands and one foot – when climbing a railcar.

    Handhold Breaks

    One day in March 2018, Besiada noticed a bent handhold on the top of an incoming railcar. The handhold’s bar was bent tight up against the side of the car.

    Besiada couldn’t reach the bent handhold from the ground because it was the top handhold, so he climbed up the lower handholds.

    Standing with both his feet on the bottom handhold, Besiada gripped the handhold below the bent handhold with his left hand.

    With his right hand, Besiada swung the blue bar over his head and hooked it on the top handhold. The second time he yanked on the blue bar, the handhold broke off at both ends.

    Besiada fell to the ground. He sustained serious injuries.

    FELA Claim

    Besiada sued Wisconsin Central in Portage County Circuit Court, under the Federal Employers’ Liability Act (FELA), 45 U.S.C. section 51 et seq.

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    FELA provides a remedy for railroad workers injured by the negligence of their employers or co-workers. The law allows injured workers to file in either state or federal court.

    The circuit court granted summary judgment for Wisconsin Central. Besiada appealed.

    Different Negligence Standard

    Judge Rachel Graham began her opinion for a three-judge panel by explaining that under FELA, a worker must show that the employer’s negligence caused his or her injury, as negligence is construed under federal law.

    Wisconsin Central argued that Besiada couldn’t prove that it had breached a duty to use reasonable care in providing a safe workplace, because he couldn’t prove that the company had acted unreasonably regarding a foreseeable risk of harm.

    Graham explained that negligence for purposes of FELA differs significantly from common law negligence.

    For instance, she pointed out that the U.S. Supreme Court has interpreted FELA to include a different standard of causation that replaces the notions of cause-in-fact and proximate cause which are central to common law negligence.

    “Therefore, while foreseeability may be an ingredient in some common law formulations of causation, the Supreme Court has rejected the premise that it plays any role in FELA’s causation standard,” Judge Graham wrote.

    Instead, Graham wrote, “the test for causation is simply whether ‘employer negligence plays any part, even the slightest, in producing the injury.’”

    Looking to Supreme Court precedent, Judge Graham concluded the following about the foreseeability that a FELA plaintiff must prove regarding the risk of harm:

    • would a reasonably prudent person foresee the potential for harm based on the employer’s knowledge of the facts?;

    • a plaintiff is not required to prove that incidents like the one that caused his or her injury occurred, or that the employer had received complaints about similar incidents; and

    • a plaintiff is not required to prove that the specific manner, method, or magnitude of the injury was reasonably foreseeable.

    Graham also pointed out that the Supreme Court’s FELA caselaw holds that whether a harm was reasonably foreseeable is generally left to a jury to answer.

    Wisconsin Central argued there was no way it knew or could have known the handhold that caused Besiada’s fall was defective.

    Judge Graham reasoned that by raising that argument, Wisconsin Central meant to argue that Besiada couldn’t prove the chain of events that led to his injury, and therefore couldn’t prove the method of repairing bent handholds that he was instructed to use created a foreseeable risk of harm.

    But Graham concluded that the notion that Besiada must prove the chain of events that led to his injury was without basis in the relevant Supreme Court caselaw.

    “So long as Besiada can persuade the jury that Wisconsin Central’s method of repair created a foreseeable risk of losing one’s balance and falling, he need not prove that it was foreseeable that he would lose his balance because the specific handhold he was attempting to repair would break off the railcar,” Judge Graham wrote.

    Graham reasoned that Wisconsin Central might also be arguing it was not reasonably foreseeable that a handhold would break and injure an employee attempting to repair it.

    Judge Graham concluded that that argument missed the mark, for the following because: 1) several witnesses testified that they’d seen handholds break during attempted repairs; and 2) an employee could be injured while repairing handholds even if the handhold didn’t break – for instance, an employee attempting to repair a bent handhold could fall because, as Besiada asserted, the handholds were too narrow to allow for a firm footing.

    The Court of Appeals reversed the circuit court’s summary judgment order.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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