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Monarch v. Southern Pacific Transportation Co.3/25/1999
railroad directly liable for "the negligence of any of the officers, agents, or employees of such carrier . . . ." (45 U.S.C. ยง 51.) The definition of "negligence" for purposes of the FELA is a expansive one, however, encompassing "any intentional tort which inflicts bodily injury upon the employee." (Slaughter v. Atlantic Coast Line Railroad Company (D.C.Cir. 1962) 302 F.2d 912, 915.) A plaintiff proceeding under the FELA "may prevail in an intentional tort case by showing either that the intentional tort was committed in furtherance of the employer's objectives or that the employer was negligent in hiring, supervising, or failing to fire the employee . . . ." (Lancaster v. Norfolk and Western Ry. Co. (7th Cir. 1985) 773 F.2d 807, 818; see also Jamison v. Encarnacion (1930) 281 U.S. 635, 641; Besta v. Consolidated Rail Corp. (S.D.N.Y. 1984) 580 F.Supp. 869.) To rule otherwise and deny liability for intentional misconduct, a much graver breach of duty than negligence, would grant a plaintiff in a FELA case fewer rights than an "ordinary tort plaintiff," a result manifestly unintended by the Act. (Lancaster v. Norfolk and Western Ry. Co., supra, at p. 818.) Appellant's action against respondent for fraudulent concealment of the dangers of excessive noise is essentially one for failure to provide a safe place to work or failure to warn of known risks, both of which are authorized by the FELA. (See Law, supra, 114 F.3d at pp. 910-912; Payne v. Baltimore and Ohio Railroad Company (6th Cir. 1962) 309 F.2d 546, 549; McClellan v. Pennsylvania R. Co. (2nd Cir. 1932) 62 F.2d 61, 63; Holladay v. Chicago, Burlington & Quincy Railroad Co. (S.D.Iowa 1966) 255 F.Supp. 879, 883-884; Mortensen v. Southern Pacific Co. (1966) 245 Cal.App.2d 241, 244.)
Further, appellant seeks recovery for compensable physical injuries under the FELA. Thus is his case distinguishable from an intentional tort action for merely emotional harm, which is excluded from the coverage of the FELA, and was for that reason found not preempted by the federal statute in Pikop v. Burlington Northern R. Co., supra, 390 N.W.2d at pp. 753-755. (See also Cavanaugh v. Burlington Northern R. Co. (D.Minn. 1996) 941 F.Supp. 872, 878-879. ) In appellant's action, which falls within the scope of the FELA, the objective of a uniform federal compensatory scheme may be compromised by a conflicting state system of compensation that authorizes a plaintiff to proceed with a case otherwise barred by the governing federal statute of limitations. (See Law, supra, 114 F.3d at p. 912.) We do not ignore or minimize the state interest in protecting its citizens from fraudulent concealment of dangers by railroad employers, but conclude that where a remedy for it has been provided by the broad reach of the FELA, which occupies the field for personal injuries to railroad employees incurred in the course of employment, the state common law tort action is preempted.
DISPOSITION
Accordingly, the judgment is affirmed.
Swager, J.
We concur:
Strankman, P.J.
Marchiano, J.
Trial Court San Francisco County Superior Court
Trial Judge Honorable Raymond Arata
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