Case Name: Mark A. Cash v. Union Pacific Railroad Company
Date Decided: November 12, 2009
Court: U.S.D.C. Eastern District of Arkansas
Judge: Judge Wilson
Citation: 2009 WL 3808546 (E.D.Ark.)

Background:
Plaintiff, Mark Cash, (“Cash”), filed an action against defendant, Union Pacific Railroad Company (“UP”) claiming he suffered injuries caused by UP’s violation of the Federal Employers’ Liability Act (“FELA”).

Cash was a locomotive engineer for UP and commutes to UP’s yard by driving himself to a UP provided shuttle service. The shuttle service had been created because Cash, and other engineers, would often be required to drive a significant distance to report for duty.

The shuttle agreement was a contract and benefitted UP because it avoided employee relocation claims related to the movement of an engineer’s operations and the engineers, on the other hand, could utilize the UP-provided transportation to commute between the two yards. UP did not charge to use the shuttle and its employees would not be in trouble if the shuttle caused them to run late to a job.

On the day of the incident, Cash parked his car to catch the shuttle. As he was walking to the van, he walked upon pallets placed end-to-end to serve as a bridge over a drainage ditch. Cash fell while walking across the “pallet bridge” and sustained injuries that are the basis of the FELA claim.

UP moved for summary judgment claiming that Cash was not “within the scope of his employment” when he fell on the pallet bridge while commuting to work.

Issue:
Was Cash within the scope of his employment when he was crossing the bridge in order to reach the shuttle?

Held:
UP argued that Cash was not acting within the scope of his employment by relying on a line of cases that held that employees injured while commuting to or from work are not within the scope of their employment for purposes of FELA.

However, this Court noted that the cases relied upon by UP held that FELA did not apply where the employee was subject to the same dangers as the commuting public at large. Here, Cash was on company property, which was not available to the commuting public. Moreover, Cash was walking across railroad property to use a shuttle provided by UP for its employees, not the commuting public.

 Also, the shuttle service, this Court found, was implemented for UP’s own operational benefit. UP encouraged employees to use the service in consideration for employees agreeing to forego relocation claims.

Accordingly because Cash was using a service encouraged by and used for UP’s benefit then it may be considered within the scope of his employment for purposes of the FELA.

Comment:
FELA imposes a non-delegable duty upon the railroad to provide its employees with a safe place to work. This duty under FELA is broader than the general common-law duty of care. It may also extend to the property of third parties and agents of the employer.

Moreover, as evidenced by this case, an employee may be within the scope of his employment for the purposes of FELA when he uses services, such as a shuttle service, that his employer has provided and implicitly encourages him/her to use in furtherance of its business.

Steve Gordon