ROWE, J.
Appellant, Crystal Sells, as a personal representative of her husband's estate, challenges the trial court's order granting Appellee's, CSX Transportation, Inc.'s ("CSX's"), motion to set aside the jury's verdict and denying her motion to set aside the jury's finding of comparative negligence. We affirm the trial court's entry of directed verdict for three reasons. First, Appellant failed to establish that CSX had a duty to take preventative measures to guard against an employee suffering from cardiac arrest. Second, Appellant failed to establish that CSX's failure to procure prompt medical assistance contributed in any way to the employee's death. Third, although CSX, through its employees, has a duty to render basic first aid to seriously ill or injured employees, this duty does not require CSX to compel its employees to administer medical care in the form of life-saving techniques that require training and/or certification.
In August 2006, Larry Sells was working as a conductor and Dick Wells was working as an engineer for CSX. They were conducting switch operations, which required Sells to exit the train and manually operate a switch to change tracks, in a rural area of Clay County, Florida. After he exited the train, Sells suffered cardiac arrest. Wells discovered Sells about two minutes after the attack. Pursuant to company policy and in compliance with federal regulations prohibiting employees from using cell phones while operating a train, Wells contacted CSX's dispatcher via the train's radio system. Because of the dispatcher's inability to communicate Sells' exact location, the EMTs' arrival was delayed by thirteen to fifteen minutes. In total, it took the EMTs approximately thirty-five minutes to reach Sells, at which point there was nothing they could do to save his life.
Appellant sued CSX under the Federal Employers Liability Act ("FELA"), alleging that CSX's negligence caused Sells' death. She alleged that CSX owed a duty to provide Sells with a reasonably safe workplace and that it breached that duty by failing to take reasonable measures to ensure that Sells received prompt, timely, and adequate medical attention; by failing to provide reasonably safe equipment, in that CSX failed to equip its trains with automated external defibrillators ("AEDs"); by failing to train Sells' co-workers in cardiopulmonary resuscitation ("CPR"); and by failing to timely call for emergency personnel after Sells collapsed.
The case proceeded to trial and the jury returned a verdict in favor of Appellant,
Appellant argues that the trial court erred in granting the motion for directed verdict for two reasons.
With respect to providing compensation for workplace injuries, the obligations of railroads differ from those of the majority of other employers in the United States. The workers' compensation laws that cover virtually all other industries provide compensation to injured employees on a no-fault basis. However, under FELA, being injured on the job does not automatically entitle an employee of a railroad to compensation; instead, compensation is awarded only if the employer's negligence caused the injury, and compensation must be reduced to the extent of the employee's own negligence. 45 U.S.C. §§ 51, 53. FELA provides, "Every common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier... for such injury or death resulting in whole or in part from the negligence of any of the officers, agent, or employees of such carriers...." 45 U.S.C. § 51. In other words, under FELA, a railroad is responsible for its employees' injuries or death caused in whole or in part by the railroad's negligence. CSX Transp., Inc. v. McBride, ___ U.S. ___, 131 S.Ct. 2630, 2634, 180 L.Ed.2d 637 (2011). To establish a claim under FELA, the plaintiff must prove duty, breach of duty, foreseeability, and causation. Fulk v. Ill. Cent. R.R., 22 F.3d 120, 124 (7th Cir.1994); Moody v. Boston & Maine Corp., 921 F.2d 1, 3 (1st Cir.1990). More specifically, to prove a claim that the railroad failed to provide an employee with a safe workplace, "the worker must establish that he became ill
First, we address whether CSX had a duty to make AEDs
While there are no cases specifically addressing whether, pursuant to FELA, a railroad is required to provide AEDs or to train its employees to administer CPR or AEDs, Florida courts have previously addressed this issue in the context of the duty owed by a property owner to an invitee and the duty owed by a school to its student under the common law.
In Limones, the supreme court held that it was for the jury to decide whether the school breached its duty to supervise its students when it failed to administer an AED on a student after he collapsed during a high school soccer game. 161 So.3d at 387. The supreme court based its decision on the fact that there is a special relationship between schools and their students due to the mandatory education of children and the fact that schools stand in the place of parents during the school day and school-sponsored activities. Id. at 390. This special relationship imposes a duty on teachers and other school employees to reasonably supervise students during all school-sponsored activities. Id. Florida courts have recognized several specific duties to student athletes, including the duty "to take appropriate measures after a student is injured to prevent aggravation of the injury." Id. at 390. The court concluded that it was for the jury to determine whether the school's employees breached this duty under the particular facts of this case. Id.
The supreme court distinguished their holding from the Fourth District's holding in L.A. Fitness that a health club's duty to an adult customer was limited to reasonably summoning emergency responders for a customer in cardiac distress. Id. at 391. The court recognized that the relationship between an adult customer and a health club was far different from the relationship between a student and school board officials. Id. at 392. "Despite the fact that business proprietor-customer and school district-student relationships are both recognized as relationships, these relationships are markedly different. We initially note that the proprietor-customer relationship most frequently involves two adult parties, whereas the school-student relationship usually involves a minor. Furthermore, the business invitee freely enters into a commercial relationship with the proprietor." Id. The same distinction applies to this case. The relationship between an employer and an employee is more similar to the relationship between a business and a customer than it is to the relationship between a school and a student. This case does not involve a jury question because, as in L.A. Fitness, CSX's duty was limited to summoning medical assistance once it learned that its employee was injured.
The dissent attempts to distinguish the business-invitees cases by noting
Because CSX's duty to provide medical assistance arose only when the emergency occurred, the trial court properly determined that CSX had no duty to take preventative measures in anticipation of an employee suffering cardiac arrest.
Second, we address Appellant's argument that she presented evidence from which a reasonable jury could conclude that CSX breached its duty to provide prompt emergency medical treatment to Sells. Appellant argues that CSX breached this duty in two respects: (1) CSX failed to promptly summon medical assistance once it learned of Sells' condition; (2) CSX failed to render medical care to Sells before the EMTs arrived. We agree that CSX failed to promptly summon medical treatment; however, Appellant is unable to establish a causal link between this failure and Sells' death. And although CSX was required to provide Sells with basic first aid while awaiting the arrival of the EMTs, we hold that CSX was under no duty to render medical care during that time.
Appellant argues that CSX breached its duty to promptly summon medical assistance when it was unable to convey directions to the EMTs as to Sells' location and by its delay in calling 911, which resulted in the EMTs' failure to reach Sells until thirty-five minutes after he went into cardiac arrest. The trial court concluded, and we agree, that Appellant presented no evidence to establish that CSX's delay in summoning medical assistance caused Sells' death. In order to create a jury issue on the question of causation in a FELA case, the plaintiff must present evidence that the railroad's negligence "`played any part, even the slightest, in producing the injury or death for which damages are sought.'" Randall, 344 F.Supp. at 883 (M.D.Penn.1972) (quoting Rogers v. Mo. P.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957)).
The uncontroverted trial testimony established that, absent any delays, the EMTs could not have arrived on scene until fifteen minutes after Sells went into cardiac arrest. As conceded by counsel at oral argument, the medical testimony conclusively demonstrated that the administration of emergency medical treatment at that point in time, without more, could not have prevented Sells' death. The dissent argues that no medical expert testified that Sells "had no chance of survival" even if the EMTs' arrival had not been delayed. This argument not only ignores counsel's repeated concessions to contrary, but it also ignores the medical testimony presented below. Sells' family practitioner testified that Sells would have been brain dead after ten minutes due to the lack of professional medical intervention. Appellant's medical expert testified that brain death begins after four or five minutes, and he testified, within a reasonable degree of medical certainty, that Sells would have been brain dead fifteen minutes after he went into cardiac arrest. He testified, "if Mr. Sells did not get effective CPR and if there was no AED, the great likelihood after 15 minutes is that he would not be able to be resuscitated in a way that would get him back to any kind of reasonable existence." Finally, the defense's expert witness testified that Sells' chances of survival after ten minutes without the provision of trained medical assistance was minimal. Here, even when the evidence is viewed in a light most favorable to Appellant, the evidence established that absent medical intervention, there was no possibility, even under perfect circumstances, of emergency medical help arriving in time to save Sells; therefore, Appellant is unable to demonstrate that any alleged breach was causally related to Sells' death.
This same reasoning applies to Appellant's argument that CSX should have permitted its employees to directly call 911, instead of radioing dispatch, in the event of an emergency. Even if Wells had directly called 911 after discovering Sells, the
Appellant argues that CSX's failure to allow Wells to speak directly with a 911 operator contributed to Sells' death because the 911 operator would have been able to instruct Wells on how to perform CPR on Sells, which would have extended Sells' life until the EMTs arrived. She contends that a reasonable jury could have found from the evidence presented that this failure was a breach of CSX's duty to provide a reasonably safe workplace. We disagree with the contention that the reasonableness of care exercised by CSX was a question of fact that precluded the entry of the directed verdict. Even if the jury made such a finding, the law does not require CSX to provide all emergency medical care that its employees might foreseeably require. See Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1179 (3d Cir.1994).
Here, we are required to examine whether a railroad's duty to provide prompt medical care encompasses a duty for employers to require their employees to perform CPR under the instruction of 911 operators. Appellant does not cite, nor can we find, any cases addressing this issue in the context of FELA; thus, we look to the common law for guidance. See Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 165-66, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007) ("Absent express language to the contrary, the elements of a FELA claim are determined by reference to the common law."). As discussed above, the special relationship between the railroads and its employees gives rise to a special duty to take affirmative action to aid an injured employee. The Restatement (Second) of Torts describes a common carrier's duty to aid its passengers, including employees, as follows:
Restatement (Second) of Torts § 314A. The duty to take reasonable action is further discussed in the comments:
Restatement (Second) of Torts § 314A, cmt. f. As applied to the current situation, this comment demonstrates that CSX's duty was to summon medical assistance when it learned of Sells' condition and to take reasonable first aid measures until medical care arrived. See Abramson v. Ritz Carlton Hotel Co. LLC, 480 Fed. Appx. 158, 161 (3d Cir.2012) (relying on comment f to conclude that an innkeeper must only summon medical care and take reasonable first aid measures until medical care arrives). "[T]he duty recognized in § 314A does not extend to providing all medical care that the carrier or innkeeper could reasonably foresee might be needed by a patron." Lundy, 34 F.3d at 1179.
As observed by the Fourth District, the duty to provide first aid "does not encompass the duty to perform skilled treatments, such as CPR. `First aid requires no more assistance than that which can be provided by an untrained person.'" L.A. Fitness, 980 So.2d at 559 (quoting Pacello v. Wyndam Int'l, 2006 WL 1102737, *6 (Conn.Super.2006)). The Fourth District explained that, pursuant to the American Red Cross and the American Heart Association's Guidelines for First Aid, common first aid treatments include, but are not limited to, calling for help, positioning a victim, ensuring that a seizure victim has an open airway, controlling a victim's bleeding by applying pressure, applying cold packs to soft-tissue injuries, warming a victim of hypothermia, and removing a drowning victim from the water. Id. While acknowledging that CPR is a commonly known technique, the Fourth District concluded that non-medical employees should not be required to perform it:
Id.; see also Abramson, 480 Fed.Appx. at 162 (clarifying that "a common understanding of `first aid' does not encompass the use of an oxygen tank or AED.... Rather, `first aid' involves simple procedures that can be performed with minimal equipment and training, such as bandaging and repositioning. CPR ... lies at the outer limit of the term."); Salte v. YMCA of Metro. Chi. Found., 351 Ill.App.3d 524, 286 Ill.Dec. 622, 814 N.E.2d 610, 615 (2004) (concluding that the use of a defibrillator was "far beyond the type of `first aid' contemplated by" § 314A); Lee v. GNLV Corp., 117 Nev. 291, 22 P.3d 209, 213-14 (2001) (holding that the duty to take reasonable steps to render first aid did not include performing the "Heimlich maneuver" on a restaurant patron who was choking). Accordingly, while CSX may have been obligated to provide general first aid to Sells, even that obligation would not
Finally, it would be a radical departure from the common law to require employers to ensure that their employees are available, capable, and willing to perform CPR on an injured co-employee while under the instruction of a 911 operator. In fact, "when an employer actually undertakes to furnish aid or assistance to an ill employee, he must exercise reasonable care in rendering such aid and assistance." Hendricks, 339 P.2d at 733; Wilke, 251 N.W. at 14 (holding that if an employer attempts to care for a sick or injured employee, the employer is liable for the failure to do so without due diligence). Thus, if an employee attempts to respond to a medical emergency but does so inadequately, the employer and the employee may be subject to a claim for having negligently rendered emergency medical services. See L.A. Fitness, 980 So.2d at 560 ("Florida law requires that an action undertaken for the benefit of another, even gratuitously, be performed in accordance with an obligation to exercise reasonable care."); Putrino v. Buffalo Athletic Club, 193 A.D.2d 1127, 598 N.Y.S.2d 648 (N.Y.App.Div.), aff'd, 82 N.Y.2d 779, 604 N.Y.S.2d 539, 624 N.E.2d 676 (1993) (personal representative of individual who suffered a fatal heart attack at an athletic club sued, alleging that the club's employees negligently rendered emergency treatment). Consequently, we hold that CSX did not have a duty to require its employees to perform CPR on another employee under the direction of a 911 operator.
For the foregoing reasons, we affirm the trial court's grant of CSX's motion for directed verdict because Appellant failed to establish that CSX had a legal duty to train its employees in the use of CPR and AEDs or to provide its employees with AEDs, and Appellant failed to establish that any alleged breach of CSX's duty to provide prompt medical attention contributed, in whole or in part, to Sells' death. Because we affirm the trial court's grant of the motion for directed verdict, we need not address Appellant's argument that the trial court erred in denying her motion to set aside the jury's finding of comparative negligence.
AFFIRMED.
LEWIS, C.J., concurs.
SWANSON, J., dissents with opinion.
SWANSON, J., dissenting.
I respectfully dissent. In my view, CSX owed Mr. Sells a duty to act with reasonable care under the circumstances, and competent substantial evidence supports the jury's verdict that CSX breached that duty of care. Therefore, I would reverse the trial court's post-verdict order granting the motion for directed verdict. Having so decided, I must also address the second point raised by appellant and not addressed by the majority, that being whether the trial court erred by allowing
Before he moved to Florida, Mr. Sells lived in New York with his family. Just prior to the move, Mr. Sells learned from his general practitioner that an electrocardiogram ("EKG") indicated a possible abnormality with the functioning of his heart. The practitioner referred Mr. Sells to a local cardiologist. During the examination, Mr. Sells told the cardiologist he was having intermittent chest pains. The cardiologist had Mr. Sells undergo another EKG and it, too, indicated a possible abnormality. As Mr. Sells was in the process of moving to Florida, the cardiologist instructed him to follow up with a Florida cardiologist. Mr. Sells failed to do so.
Approximately six months after moving to Florida, Mr. Sells began working for CSX as a train conductor. As part of the employment process, he completed a medical questionnaire which asked if he had ever had any heart "trouble" or chest pains. Mr. Sells checked "no" to these questions.
On August 14, 2006, Mr. Sells was at work along with Mr. Charles Wells, a CSX train engineer. They were the only employees working at the job site which, although in a remote location in Green Cove Springs, Florida, was one where employees worked "possibly daily." While Mr. Wells was inside the train, Mr. Sells was outside throwing a switch on the track. Mr. Wells waited to hear the noise indicating the switch had been thrown, but after a couple of minutes, when he heard nothing, he looked out the window and saw Mr. Sells lying face up on the ground. He did not immediately go to help Mr. Sells. Instead, pursuant to CSX instructions concerning handling an emergency, he used the fixed train radio to call the CSX dispatcher located in the CSX operations center in Jacksonville to alert him of the situation and to provide him with Mr. Sells' location. Mr. Wells had his personal cell phone with him, but due to a CSX policy requiring contact with only CSX during an emergency, he did not use it to call 911. Mr. Wells replaced the fixed radio and then went outside to Mr. Sells. He attempted to perform cardiopulmonary resuscitation ("CPR") on Mr. Sells, but, because he was not trained in the technique, he only mimicked it as he had seen it done on television. As a result, he did not correctly perform CPR. Further, there was no automated external defibrillator ("AED") available.
Meanwhile, the CSX dispatcher called 911. The CSX dispatcher was confused about the train's location and had difficulty providing it to the 911 operator. He contacted other CSX employees to assist him with trying to locate Mr. Sells. Because he could not identify the location, he had two different 911 operators on the line at once. At some point, Mr. Wells retrieved his cell phone and turned it on. It immediately rang with a call from a CSX employee asking for directions to Mr. Sells' location, which Mr. Wells provided. Several CSX employees arrived via their own vehicles, but they did not attempt to treat Mr. Sells or transport him to a medical facility for treatment; they only placed a windbreaker over his face because the sun was shining in his eyes. Following a delay of approximately thirty-five minutes after Mr. Wells found Mr. Sells on the ground, the emergency medical team ("EMT") arrived. They declared Mr. Sells dead after a couple of minutes of assessing him. The autopsy report revealed that when Mr. Sells died, he had some blockage of his heart valves but did not suffer a myocardial infarction.
The case proceeded to trial and the jury returned a verdict in appellant's favor, finding that CSX had acted negligently,
I first note that the majority fails to fully discuss and analyze the fact that this appeal concerns the lower court's grant of a post-verdict motion for directed verdict — a crucial consideration in the analysis of this appeal.
The standard of review of an order granting a motion for a directed verdict is de novo. See Williams v. Washington, 120 So.3d 1263, 1264 (Fla. 1st DCA 2013). "In Florida, `[a]n appellate court ... must view the evidence and all inferences of fact in the light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.'" Sanders v. ERP Operating Ltd. P'ship, 157 So.3d 273, 280 (Fla.2015) (quoting Friedrich v. Fetterman & Assocs., P.A., 137 So.3d 362, 365 (Fla. 2013)). "`The power to direct a verdict should be exercised with caution, and it should never be granted unless the evidence is of such a nature that under no view which the jury might lawfully take of it, favorable to the adverse party, could a verdict for the latter be upheld[.]'" Borda v. E. Coast Entm't., Inc., 950 So.2d 488, 490 (Fla. 4th DCA 2007) (quoting Little v. Publix Supermarkets, Inc., 234 So.2d 132, 133 (Fla. 4th DCA 1970)). A motion for a
Courts should treat motions for directed verdicts with "special caution, and this is especially true in negligence cases where the function of a jury to weigh and evaluate the evidence is particularly important since reasonable people can draw various conclusions from the same evidence." Id. Accord Blake v. Hi Lu Corp., 781 So.2d 1122, 1124 (Fla. 3d DCA 2001). A motion made following a jury's verdict should be treated even more cautiously because a trial court should afford a jury's verdict great deference. See Frazier v. Honeywell Int'l, Inc., 518 F.Supp.2d 831, 835 (E.D.Tex.2007). Courts should only grant such post-verdict motions when "the facts and inferences point so strongly in favor of the movant that a rational jury could not reach a contrary verdict." Id. (quoting Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 486 (5th Cir.2004)) (internal quotation marks omitted).
In the instant case, CSX moved for a directed verdict at the close of appellant's case, which the trial court denied. CSX then renewed its motion after the jury returned a verdict finding CSX negligent. At this juncture, the trial court granted the motion finding, in part, that CSX had no duty to anticipate Mr. Sells would suffer a heart attack, and any duty it may have had arose with the emergency itself. It further found that because the evidence presented at trial did not demonstrate that Mr. Sells had any chance of survival even if the EMT had arrived as quickly as possible, CSX had no duty to provide prompt medical care to Mr. Sells. These conclusions require an analysis of the duty owed by CSX to Mr. Sells as well as the facts presented at trial. As set forth infra, in my opinion the majority, as did the trial court below, incorrectly assesses the facts that were presented to the jury, and misapplies the controlling federal law and regulations, and case law. Consequently, I conclude that the trial court abused its discretion when it granted the post-verdict motion for directed verdict and would reverse on that basis.
In Norfolk Southern Railway Co. v. Sorrell, 549 U.S. 158, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007), the United States Supreme Court explained that, unlike typical workers' compensation schemes, which provide relief to employees regardless of fault, plaintiffs seeking relief under FELA must show they have suffered injury as a result of the employer's negligence. Id. at 165, 127 S.Ct. 799 (citing 45 U.S.C. § 51). The Supreme Court further explained that "[a]bsent express language to the contrary, the elements of a FELA claim are determined by reference to the common law." Id. at 165-66, 127 S.Ct. 799 (citing Urie v. Thompson, 337 U.S. 163, 182, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949)). Under FELA, to prevail in a negligence action the plaintiff must prove that 1) the employer owed a duty of care to the employee; 2) the employer breached that duty by acting negligently; 3) it was foreseeable that the employee would be injured; and 4) the employer's negligence caused the injury. See Adams v. CSX Transp., Inc., 899 F.2d 536, 539 (6th Cir.1990).
As explained in Forcino v. National Railroad Passenger Corp., 671 So.2d 888 (Fla. 5th DCA 1996), FELA is a broad remedial statute that is to be liberally construed to accomplish Congress' intent to provide a federal remedy for railroad workers who suffer personal injuries due to the negligence of rail companies. Id. at 889. Congress enacted FELA with a capacious
Whether a railroad has a duty under FELA is a question of law to be decided by the court, whereas the other three elements — breach of duty, foreseeability, and causation — are questions of fact for the jury. Norfolk S. Ry. Co. v. Zeagler, 293 Ga. 582, 748 S.E.2d 846, 851-52 (2013) (stating that the legal question of duty should be kept separate from the factual questions of breach, foreseeability, and causation "to ensure that the court does not inappropriately decide factual issues that should be submitted to the jury," citing Wilkerson v. McCarthy, 336 U.S. 53, 55, 69 S.Ct. 413, 93 L.Ed. 497 (1949)).
Turning to the merits of the instant appeal, the threshold issue is whether CSX owed a duty to Mr. Sells under the emergency medical situation presented by the facts, and, if so, what it was required to do.
As the trial court acknowledged, FELA places upon a railroad employer the duty to provide a reasonably safe workplace. See Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 558, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987). A "reasonably safe workplace"
Jordan v. Burlington N. Santa Fe R.R. Co., 2009 WL 112561, at *6 (Tenn.Ct.App. 2009) (emphasis added).
Under Florida law, duty may be derived from four sources: 1) legislative enactments or administrative regulations; 2) judicial interpretations of those statutes or regulations; 3) other judicial precedent; and 4) a duty arising from the general facts of the case. See McCain v. Fla. Power Corp., 593 So.2d 500, 503 n. 2 (Fla. 1992).
In turn, OSHA regulation 29 C.F.R. 1910.151(b) requires that when employees work in a location without an infirmary, clinic, or hospital "in near proximity" to the workplace, an employer "shall" have a person or persons adequately trained in "first aid" available to treat an injured employee. This regulation signals that Congress foresaw the probability that employees will suffer illness or injury, and recognized that because employees working in remote locations are more susceptible to delayed access to EMTs or medical facilities, employers must provide basic medical care on-site.
OSHA does not define "first aid." Nor has a careful search revealed any FELA case defining "first aid." It has been suggested by some courts that it is appropriate to look to cases addressing the common law duty owed by businesses to invitees when analyzing duties owed by railways to their employers because "the railroad's duty `seems not unlike the duty of the owner of premises to an invitee. The owner must use care to keep the premises reasonably safe for the protection of the invitee.'" Glenn v. Union Pac. R.R. Co., 176 P.3d 640, 643 (Wyo. 2008) (quoting Chicago B. & Q. R.R. v. Murray, 40 Wyo. 324, 277 P. 703, 707 (1929)) (footnote omitted).
In undertaking an analysis of whether CSX owed a duty to present CSX-provided CPR or an AED, or prompt medical care, to Mr. Sells, it should be noted that the jury verdict form given to the jury did not break down liability into these three separate categories. Instead, as noted above, the verdict form simply asked the jury to determine if CSX's "negligence" was a legal cause of Mr. Sells' death.
In regard to CPR and AEDs, the trial court, and the majority, rely in part upon L.A. Fitness International, LLC v. Mayer, 980 So.2d 550 (Fla. 4th DCA 2008), to support their conclusion that CSX did not owe Mr. Sells the duty to provide an AED or CPR by a CSX-trained employee. In L.A. Fitness, the Fourth District Court of Appeal considered a case in which a plaintiff sued a health club and asserted that the business had a duty to, among other things, have an AED on-site and to administer CPR to her father, a club member,
In my view, however, an analysis adopting and applying case law concerning the business-customer relationship is problematic as applied to the instant case, which concerns an employer-employee relationship, and, more important, an employee sent by his employer to work in a remote location. In reaching this conclusion, I look to the recent Florida Supreme Court case, Limones v. School District of Lee County, 161 So.3d 384 (Fla. Apr. 2, 2015) ("Limones II"), in which the supreme court reviewed the Second District Court of Appeal's decision in Limones v. School District of Lee County, 111 So.3d 901 (Fla. 2d DCA 2013) ("Limones I"), and the assertion that it expressly and directly conflicts with McCain v. Florida Power Corp. 161 So.3d at 389. Specifically, it considered a situation in which a student participating in a school soccer game suffered cardiac arrest and ultimately experienced a severe brain injury due to lack of oxygen caused by a delay in administering treatment with an AED. In this context, the supreme court was called to consider the significance of section 1006.165, Florida Statutes, which requires all public schools that are members in the Florida High School Athletic Association to acquire an AED, train personnel in its use, and register its location with EMTs.
In Limones I, the Second District considered L.A. Fitness and ruled there was no distinction between the duty owed by the health club to its invitee, and the duty owed by the school district to the student. 111 So.3d at 906. The supreme court rejected this ruling. It explained:
Limones II, 40 Fla. L. Weekly at S184 (citations and footnote omitted).
I consider the situation in the instant case, involving an employer-employee relationship, also to be markedly different from a business-customer relationship. In the latter situation, the customer willingly enters onto the business's premises and is free to leave when he or she chooses. In the employer-employee relationship, the employer controls the employee; if the employee wishes to remain employed he must work when and where the employer directs him. See Saudi Arabian Airlines Corp. v. Dunn, 438 So.2d 116, 120 (Fla. 1st DCA 1983). As this Court explained in Dunn:
Id. (quoting City of Boca Raton v. Mattef, 91 So.2d 644, 647 (Fla.1956)).
Furthermore, another important factor that distinguishes L.A. Fitness and the cases upon which the Fourth District relied in order to reach the conclusion that the health club did not have a duty to provide AEDs or CPR but only to call EMTs, is that all of the businesses in those cases were readily accessible by EMTs, as they were located in populated areas. Here, we have a situation where Mr. Sells was working in a remote location.
I believe the correct analysis to be applied regarding whether CSX owed a duty to provide CPR and an AED to Mr. Sells is set forth in Limones II. In concluding that the school district owed the student the duty to act with reasonable care under the circumstances to avoid or mitigate further aggravation of the injury, the supreme court explained:
Limones II, 40 Fla. L. Weekly at S184 (emphasis added). Granted, the supreme court emphasized the point that the school district was in a position of authority over the young student who was mandated by law to be in its care. Although not as authoritative and restrictive of a relationship as this, CSX and Mr. Sells were in an employer-employee relationship in which CSX dictated to Mr. Sells where he would work. I would conclude that this relationship is distinctly different from the business-customer relationship as characterized by the Fourth District in L.A. Fitness, because of the control the employer exercises over the employee.
The trial court, as affirmed by the majority, concluded that CSX did not have a duty to provide CPR or an AED to Mr. Sells because "long-standing" case law indicates CSX did not have the duty "to take preventative actions in anticipation of an employee falling ill at work" or "to take anticipatory measures to prevent such emergency situations." Both the trial court and the majority appear to be asserting that employers do not have a duty to anticipate, or foresee, that employees will suffer medical emergencies requiring prompt medical treatment, and therefore they do not need to plan for such emergencies, because the duty "arises with the emergency." They conclude that employers only need to respond when the emergency arises, basically, in the best way they can as the situation unfolds. In this regard, according to the majority, employers only have a duty to promptly call EMTs-and only if there is a likelihood that calling EMTs will result in the injured or ill employee surviving. To support this conclusion, the majority relies primarily on two cases, Szabo v. Pennsylvania R. Co., 132 N.J.L. 331, 40 A.2d 562 (N.J.1945), and Wilke v. Chicago, Great Western Railway Co., 190 Minn. 89, 251 N.W. 11 (1933).
Szabo concerned a situation in which, at that time, employers did not have a duty to provide medical care to an injured employee unless a specific statute required such, or the employer and employee had a contract between them requiring the employer to provide treatment — even when the injury was caused by the negligence of the railroad. 40 A.2d at 563. Szabo rejected the assertion that these are the only situations in which an employer had a duty to provide medical care to an employee. Instead, it created what has become known as the "humane instinct doctrine,"
A comprehensive survey of cases citing Szabo indicates that no court has concluded the language stating that an employer has a duty to provide care once the emergency arises, means there is no duty to anticipate emergency medical situations
Wilke concerned a situation in which an employee began to exhibit signs that he was not well, and, over the course of about a half hour, wound up dying of what appeared to have been heat stroke. 251 N.W. at 13. The crux of Wilke's argument was that the railroad should have known its employee was sick, and should have done something about it, such as recognizing that due to the heat, the railroad should have had a doctor at the worksite in anticipation that some of the workers could be taken ill. The Minnesota Supreme Court rejected this assertion and stated the railroad did not have a duty to anticipate that any employee would be taken ill from heatstroke such that a doctor needed to be provided on-site. But again, as with Szabo, a careful search of case law indicates that, of the three published cases that cite to Wilke, none has cited it for the proposition that an employer does not have a duty to anticipate medical emergencies and prepare to address them.
Put simply, there is no long-standing case law directing that an employer does not have a duty to anticipate medical emergencies or prepare for them. Indeed, this conclusion flies in the face of federal and state safety statutes, and is in conflict with countless cases in which courts have considered an employer's duty to provide a reasonably safe workplace, which necessarily requires anticipation of the types of injuries that could occur, and how they can be avoided. See, e.g., Atl. Coast R.R. Co. v. Chancey, 76 So.2d 871, 873 (Fla.1955) ("`The [e]mployer is not held to an absolute responsibility for the reasonably safe condition of the place, tools and appliances, but only to the duty of exercising reasonable care to that end, the degree of care being commensurate with the danger reasonably to be anticipated.'") (emphasis added).
In conclusion, in recognition of the nature of the employer-employee relationship, and in concert with Limones II, I would reverse the trial court's order finding that CSX did not owe a duty to Mr. Sells to supply CSX-provided CPR and an AED. There is competent, substantial evidence in the record from which the jury could have found CSX liable for its failure to provide an AED and CPR to Mr. Sells under the facts of this case. See Limones II, 40 Fla. L. Weekly at S184.
49 U.S.C. section 20109 of the FRSA, sets forth certain employee protections.
The facts of the instant case are similar to those in Bridgeman v. Terminal Railroad Ass'n of St. Louis, 195 Ill.App.3d 966, 142 Ill.Dec. 405, 552 N.E.2d 1146 (1990). In that case Bridgeman began to feel ill while working at a train yard. Id. 142 Ill.Dec. 405, 552 N.E.2d at 1147. He told a co-worker he did not feel well, and he laid down on a bench. The co-worker attempted to rouse Bridgeman so the train could leave, but Bridgeman continued to report he did not feel well. Bridgeman went into the bathroom and after some time, the co-worker heard him call out for the foreman. The co-worker located the foreman, and the foreman returned to the bathroom and called to Bridgeman, but Bridgeman did not respond. The foreman then left to get his supervisor. About fifteen minutes passed between when Bridgeman first reported feeling ill and when the foreman and his supervisor found him in the bathroom, slumped against the wall, pale, cold, and without a pulse. Meanwhile, the supervisor called the yardmaster to contact an ambulance, but when no ambulance arrived he called the yardmaster three or four additional times. An ambulance arrived approximately forty-five minutes later. The ambulance report indicated it had not received a call for help until approximately forty-five minutes after the foreman and the supervisor found Bridgeman in the bathroom. Testimony at trial indicated that an ambulance station was located several blocks from the train yard, and an acute trauma center was located about one minute away. Bridgeman's autopsy revealed his death was caused by acute myocardial infarction, and he had severe obstructive artery disease.
The administrator of Bridgeman's estate filed suit under FELA, asserting that the railway had a duty under FELA to provide prompt emergency medical care. Id. 142 Ill.Dec. 405, 552 N.E.2d at 1148. A jury rendered a verdict in the estate's favor, and the railway appealed, arguing it did not have a duty to render aid and it did
The Illinois appellate court opined that the railway had a duty to render prompt medical care, but the railway thwarted that duty by delaying the EMT's response. Id. It further concluded the evidence was sufficient to establish under the plain language of FELA that the railway was liable, at least in part, for Bridgeman's death, even with post-mortem evidence of myocardial infarction and obstructive artery disease, due to its delay in contacting the EMT. Id. (citing Randall v. Reading Co., 344 F.Supp. at 881-82).
In the instant case, the uncontroverted evidence revealed CSX had a policy requiring employees on trains to contact the CSX dispatcher via a fixed radio when experiencing an emergency situation. The evidence further indicated that CSX had a blanket policy forbidding its employees from using their cell phones while working. This prohibition appears to stem from FRA regulations governing the use of personal cell phones and other electronic devices while a rail employee is working. These regulations are intended to reduce safety risks that can occur because of distraction, and forbid the use of these devices if they would interfere with the "performance of safety-related duties." 49 C.F.R. §§ 220.301 & 220.303. Specifically, a "railroad operating employee" may not have his personal electronic device turned on when a train is moving, when a crew member is on the ground or riding rolling equipment during a switching operation, or when assisting with the preparation of the train for movement. 49 C.F.R. § 220.305. However, there are exceptions to this regulation, the most crucial being that a railroad employee may use a personal electronic device "as necessary to respond to an emergency situation involving the operation of the railroad or encountered while performing a duty for the railroad." 49 C.F.R. § 220.309.
The record clearly indicates that CSX had no policy or plan in place to effectuate or allow for this "emergency situation" exception. Moreover, the testimony and evidence presented at trial indicate that CSX gave little thought as to how it would meet its duty to ensure employees working in remote locations would receive prompt medical care in emergency situations. First, CSX had in place a policy requiring train employees to use a fixed radio to call a dispatcher, thus placing responsibility on the dispatcher to relay the location and nature of the emergency which, as here, was unfolding in a remote location. The deficiency of this policy was further exacerbated by CSX's flawed internal procedures and equipment used to determine train locations — which testimony indicates was time-consuming to operate — in a situation where time was of the essence. Although this remote location was occupied on a daily or near daily basis, the CSX dispatcher could not identify the location for the EMT, and even resorted to contacting other CSX employees outside of the CSX dispatch office for guidance and assistance. It was not until Mr. Wells at last turned on his cell phone and fielded a call from another CSX employee that the location was successfully provided to the EMT. The record is clear: the CSX dispatcher was ineffectual in getting the EMT to Mr. Sells. As in Bridgeman, the evidence incontrovertibly indicates that CSX caused a delay in the EMT promptly responding to Mr. Sells.
To summarize, CSX owed a duty to Mr. Sells to exercise reasonable care to ensure he received prompt medical attention. See Pulley, 821 So.2d at 1014; Van Gorder, 509 F.3d at 269; Bridgeman, 142 Ill.Dec. 405, 552 N.E.2d at 1148. The jury found CSX breached this duty by failing to use
Despite the case law, the record evidence, and the jury verdict, the majority, as did the trial court, concludes that CSX did not have a duty to provide prompt medical care to Mr. Sells because the trial testimony was "uncontroverted" that even if the EMT had arrived as quickly as possible, which the majority states was fifteen minutes, Mr. Sells would have died anyway. This evidentiary assessment is not accurate.
First, one of the Clay County paramedics who responded to the 911 call testified that they arrived at Mr. Sells' side just over thirteen minutes after the call was received at the Clay County rescue station. He testified his records indicated that by the time the EMT arrived, Mr. Sells had been on the ground between thirty-five to forty-five minutes. Further, the 253 pages of the trial transcript setting forth the testimony of Mr. Sells' treating physicians and the medical experts retained to analyze his medical records and the emergency event, clearly reflect that not one of them stated that "the administration of emergency medical treatment, at that point in time, without more, could not have prevented Sells' death." None of the five medical experts — including three board-certified cardiologists — who testified at trial stated it was a foregone conclusion that Mr. Sells had no chance of survival because the EMT had arrived in just under fourteen minutes. Instead, the medical testimony demonstrates the amorphous and nebulous nature of survivability in an emergency situation involving a heart attack, and the inability of any of the experts to quantify survivability other than in terms of it being a "possibility" or a "probability."
Specifically, the record indicates that Dr. Orlando Bautista, Mr. Sells' general practitioner in New York, testified as to the difficulty in ascertaining survivability, and explained that heart rhythm could be restored "after many minutes of cardiac arrest, sometimes 15 minutes, 20 minutes." He stated that oxygenation of the brain should be restored as soon as possible, and preferably within ten minutes so that a cardiac victim does not suffer brain death. He stated that while brain death is likely to occur if there is no oxygenation by ten minutes into the emergency, medical professionals would "keep trying ... even if it's half an hour, we keep trying to resuscitate... depending on what's transpiring, sometimes we wait an hour." When asked if he had an opinion within a reasonable degree of medical probability as to whether Mr. Sells would have survived if the EMT had arrived within fifteen minutes as opposed to thirty, he stated, "His chances would have been better. It would be difficult to measure, but I — just common sense says it would say it would have been better." When pressed by counsel whether there was "much of a hope" of survival after ten minutes, Dr. Bautista stated that "recovery rates go[] very low after 10 minutes."
The only other medical expert to opine on Mr. Sells' survivability with prompt medical care was Dr. Michael Zile, a board-certified cardiologist. He opined that, as to the different forms of arrhythmia Mr. Sells may have experienced, he had between a zero to thirty percent chance of surviving. However, he stated he could not identify a specific cause of death. Nonetheless, he opined that even if Mr. Sells had timely received CPR, treatment with an AED, and prompt medical care, he was "not likely" to have survived. On cross examination, however, he agreed that sudden death was not "necessarily permanent" and with proper medical care a person could recover from it.
My reading of the trial transcript indicates that, contrary to the majority's conclusion,
Furthermore, the trial court's finding — that "no reasonable jury could reach a verdict for the plaintiff on th[e] basis [that CSX breached its duty to provide timely medical care], because [appellant] presented no evidence that CSX's response to Mr. Sells' cardiac arrest caused his death" — is flawed in several respects. (Emphasis added.) First, under the facts of this case, the correct legal analysis is not whether CSX caused Mr. Sells' death, but whether it had any part at all in causing Mr. Sells' death. See Forcino, 671 So.2d at 889. "`Under [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.'" CSX Transp., Inc. v. McBride, ___ U.S. ___, ___, 131 S.Ct. 2630, 2636, 180 L.Ed.2d 637 (2011) (emphasis added) (citing Rogers, 352 U.S. at 506, 77 S.Ct. 443).
Second, the record demonstrates that appellant presented evidence, particularly in the form of Dr. Bautista's and Dr. Fifer's testimony, from which the jury could conclude that CSX contributed to Mr. Sells' death.
Third, the trial court failed to acknowledge the governing case law such as Forcino and McBride, in which the Supreme Court, citing Urie and Rogers, discussed FELA's relaxed causation standard. The McBride court explained that FELA's language regarding causation was "`as broad as could be framed'" and, due to the "breadth of the phrase, `resulting in whole or in part from the [railroad's] negligence,'" combined with Congress' "`humanitarian'" and "`remedial goal[s],'" when compared to common law tort litigation, FELA has a more relaxed standard of causation. Id. at 2636 (citing Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542-43, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994)).
Fourth, by making this finding, the trial court ventured into the domain of the jury regarding the matter of causation. See Limones II, 40 Fla. L. Weekly at S183-84; Zeagler, 748 S.E.2d at 851. "Once a court has concluded that a duty exists, Florida law neither requires nor allows the court to further expand its consideration into how a reasonably prudent person would or should act under the circumstances as a matter of law." Limones II, 40 Fla. L. Weekly at 5183. In Limones II the supreme court concluded that the Second District "incorrectly expanded Florida law and invaded the province of the jury when it further considered whether post-injury efforts required Respondent to make available, diagnose the need for, or use the AED on [the student]." Id. This is exactly what the trial court and the majority did and are doing in the instant case: invading the province of the jury and concluding (incorrectly, as explained, supra), that because Mr. Sells would have died even if the EMT had been promptly summoned, CSX did not have a duty to provide prompt medical care. The trial court instructed the jury to deliberate on the matter of causation, it did so, and it produced a verdict in favor of appellant. Nonetheless, the trial court's finding that CSX did not "cause" Mr. Sells' death improperly wrested this determination from the jury and overturned its verdict. See Linafelt v. Beverly Enters.-Fla., Inc., 745 So.2d 386, 389 (Fla. 1st DCA 1999) ("Ordinarily, a trial court should not overturn a jury verdict unless `there is
A trial court abuses its discretion when it bases its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); McDuffie v. State, 970 So.2d 312, 326 (Fla. 2007) (citing Cooter & Gell); Criner v. State, 59 So.3d 196, 197 (Fla. 1st DCA 2011). Further, as explained in Lynch v. Northeast Regional Commuter Railroad Corp., 700 F.3d 906, 916 (7th Cir.2012), "in FELA cases, the role of the court is not to search the record for conflicting circumstantial evidence and to take the case from the jury because the evidence equally supports inconsistent and uncertain inferences. Instead, it is the function of the jury, not the court, to select among conflicting inferences and conclusions." (citing Gallick, 372 U.S. at 113, 83 S.Ct. 659). I conclude, therefore, that the trial court abused its discretion by granting the post-verdict motion for directed verdict for all these reasons.
The more persuasive and accepted analysis is expressed in Budd v. Erie Lackawanna Railroad Co., 93 N.J.Super. 166, 225 A.2d 171 (1966). In Budd, the court reviewed a case in which the railroad argued on appeal that the plaintiff failed to prove negligence because she did not prove her husband would have survived had the railroad rendered medical aid to treat his heart attack. The court observed:
Id. at 174 (some citations and a footnote omitted).
The second point raised by appellant is whether the trial court erred by allowing the jury to consider whether Mr. Sells, himself, had been comparatively negligent, and by denying appellant's motion to set aside the jury's finding to that effect. While I would reverse the trial court's order granting CSX's post-verdict motion for directed verdict, I would affirm the jury's finding of comparative fault. The FRSA states that a railroad is liable for an injury or death suffered by an employee if its negligence, in whole or in part, caused the injury or death. 49 U.S.C. § 51. If an employee was comparatively negligent, any damages are to be reduced by the jury in proportion to the amount of negligence attributable to the employee. 49 U.S.C. § 53. The Fifth Circuit Court of Appeals' opinion in Johnson v. Cenac Towing, Inc., 544 F.3d 296, 303-04 (5th Cir.2008), is instructive. Johnson involved a negligence claim filed pursuant to the "Jones Act," 46 U.S.C. section 30103. Jones Act negligence cases follow FELA case law because the Act states that FELA regulations and related case law apply to actions brought under the Jones Act. Id. at 301 n. 2. See also 46 U.S.C. § 30104; Sobieski v. Ispat Island, Inc., 413 F.3d 628, 631 (7th Cir.2005) (stating that the Jones Act incorporates by specific reference FELA case law). In Johnson, the court explained that a seaman may be found to have contributed to his injury suffered at work where he concealed material information about a preexisting injury or physical condition from his employer, exposed himself to re-injury or aggravation of his condition, and then suffered re-injury or aggravation as a result. 544 F.3d at 303-04.
The instant record indicated that when Mr. Sells filled out CSX's medical questionnaire, he checked the box stating he did not have a history of any heart "trouble" or chest pain. However, the record showed that Mr. Sells told his New York cardiologist he was having chest pains. Mr. Sells did not inform CSX at any time that he had experienced chest pains, or that he underwent three EKGs — two in New York and one in Florida — which suggested a possible abnormality. Thus, under FELA and Johnson, the trial court properly submitted to the jury the question of Mr. Sells' comparative negligence in failing to disclose his chest pains and problematic EKGs to CSX. Id. See also 49 U.S.C. § 53; Johnson, supra.
For the foregoing reasons I would reverse the final judgment and remand the cause to the trial court with directions that the court reinstate the jury's verdict, including its finding that Mr. Sells was forty-five percent comparatively negligent.
ORDER ON APPELLANT'S MOTION FOR REHEARING, REHEARING EN BANC, OR, ALTERNATIVELY, CERTIFICATION
PER CURIAM.
Appellant's Motion for Rehearing, Rehearing En Banc, or, Alternatively, Certification, is denied.
LEWIS and ROWE, JJ., CONCUR; SWANSON, J., CONCURS IN PART AND DISSENTS IN PART, WITH OPINION.
SWANSON, J., concurring in part and dissenting in part.
In recognition of the fact that I am in the minority in the disposition of this appeal, I defer to the majority's decision on the motion for rehearing or rehearing en
