Ga. SC rules for CSX worker

By Jessica M. Karmasek | Oct 17, 2011


ATLANTA (Legal Newsline) - The Georgia Supreme Court ruled Monday that an appeals court correctly reversed the judgment of a lower court in favor of CSX Transportation Inc.

At issue in the case is evidence of CSX employee Larry Smith's past discipline.

On April 6, 2004, two supervisors allegedly observed Smith, a conductor for the company, violate a safety rule by dismounting a moving train. They subsequently removed him from service pending further investigation.

Several hours later, Smith entered CSX's Terminal Administration Building in Walbridge, Ohio, and was walking up a flight of stairs on his way to a union safety meeting when he slipped and hit his knee on the edge of a step.

A small puddle of liquid soap was later found on the stair tread.

Smith had knee surgery one year later.

In 2007, Smith sued CSX in Gwinnet County Superior Court under the Federal Employers' Liability Act, which provides a federal tort remedy for interstate railroad employees who are injured while working within the scope of their employment.

Smith moved to exclude as irrelevant any evidence of past discipline by CSX, including the incident before his fall, which allegedly caused two supervisors to advise him that he was "out of service."

The trial court granted that motion. At trial, the jury returned a verdict in favor of CSX, and the trial court entered judgment in favor of the company.

However, the state Court of Appeals reversed because the trial court refused Smith's request to instruct the jury regarding a federal Occupational Safety and Health Administration stair regulation requiring that "(all) treads shall be reasonably slip-resistant and the nosings shall be of nonslip finish."

The appeals court also concluded that, because of Smith's own actions, the trial court did not err in allowing CSX to cross-examine him regarding whether he had been taken "out of service" before his fall and to present evidence concerning this issue.

One judge concurred specially on the ground that Smith's failure to object or otherwise seek enforcement of the ruling on the motion in limine "could not open the door to the questioning by CSX."

The state's high court granted review of both issues. Presiding Justice George H. Carley authored the Court's 13-page opinion.

It said the appeals court correctly held that Smith presented evidence that the nosings on the stairs in the building where he fell were not of a nonslip finish and that, together with the soap spill, the nosings' finish caused his fall.

"We conclude that, because the requirement in 29 CFR ยง 1910.24 (f) that the nosings be of nonslip finish was applicable to the stairs in CSX's office building, was raised by the evidence, and was not otherwise covered in the jury instructions, the trial court should have given Smith's request to charge the jury that it could consider a violation of that regulation as evidence of negligence on the part of CSX," Carley wrote.

"Therefore, the Court of Appeals correctly reversed the judgment of the trial court on this basis."

Despite the appeals court's "proper" reversal, the Court decided to consider the evidentiary issue.

It noted that the appeals court correctly acknowledged that the favorable ruling on Smith's motion in limine did not require him to object to evidence encompassed by his motion.

However, "the party winning a motion in limine may open the door to the offending evidence by offering evidence which in fairness allows the other side to delve into the area previously precluded."

"It is well-settled that, even though a party makes a motion in limine and obtains a favorable ruling thereon, when he nevertheless has interjected the prohibited evidence through his own testimony or otherwise 'has himself induced what he subsequently (enumerates) as error (in that regard), he will not be heard to complain of it on appeal,'" Carley wrote.

The Court further noted that once the door was opened, the particular cross-examination of Smith and subsequent impeaching evidence was admissible.

"On cross-examination, Smith contradicted his deposition testimony that an employee who is out of service may not go onto railroad property without permission, and he affirmatively testified that he was not taken out of service prior to his fall," Carley wrote.

"Because the circumstances surrounding Smith's dispute with the supervisors a few hours before he went to CSX's 'administration building to attend the safety meeting were at least indirectly material to matters at issue in this case, including whether Smith was acting within the scope of his employment' at the time of his fall, the trial court did not abuse its discretion in allowing CSX to cross-examine Smith on the issue and in admitting the testimony of (the supervisors) for purposes of disproving certain facts to which Smith had testified."

From Legal Newsline: Reach Jessica Karmasek by email at

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