Client Advisory

Rachel S. Rubenstein, Matthew P. Moccia

In a recent decision, the Missouri Court of Appeals, the intermediate court in Missouri, held that, under the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. §§ 51, et seq., contributory negligence is available as a defense, distinguishing it from the assumption of risk defense, which was abolished by congressional act in 1939.

In Inglis v. BNSF Railway Co., Inglis, a truck driver for BNSF Railway Co., accused his employer of failing to provide reasonably safe conditions for work, reasonably safe methods of work, and reasonably safe help and assistance in his work. His claim arose out of an incident in which, as he was driving his employer’s truck over railroad tracks located in the employer’s rail yard, an oncoming train struck the rear portion of the truck. Inglis claimed that he could not pay attention to the dangers of the oncoming train due to alleged problems at the rail yard that made it difficult to navigate, including broken roads and insufficient or excessive distances. In response, BNSF asserted the affirmative defense that plaintiff’s contributory negligence caused or contributed to his injuries, citing his failure to maintain a reasonable degree of alertness and situational awareness, failure to follow standard safety procedures, and failure to follow BNSF’s safety and operating rules.

At trial, the jury was given instructions stating,
“In your verdict, you must assess a percentage of fault to plaintiff if you believe:
First, plaintiff failed to keep a lookout for and yield to the oncoming trains, and
Second, plaintiff was thereby negligent, and
Third, such negligence of plaintiff resulted in whole or in part in injury to plaintiff.”

The jury found plaintiff was 70% contributorily negligent and reduced his damages from $3 million to $900,000. Inglis appealed the judgment, claiming the trial court erred in submitting the instructions to the jury, arguing it was an impermissible assumption of risk defense.

The Missouri Court of Appeals held that, while assumption of risk is unavailable as a defense to a FELA general negligence claim, contributory negligence is distinct, noting that “courts have the delicate job of separating out evidence on one theory from evidence on the other.” The Court found that the evidence at trial was consistent with the jury instruction that Inglis was contributorily negligent if he “failed to keep a lookout for and yield to the oncoming trains.” In so doing, the Missouri court ruled consistently with the federal courts’ interpretation of § 53 of FELA.