Norfolk & Western Railway Company v. Hiles – Oral Argument – January 08, 1996

Media for Norfolk & Western Railway Company v. Hiles

Audio Transcription for Opinion Announcement – February 27, 1996 in Norfolk & Western Railway Company v. Hiles

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William H. Rehnquist:

We’ll hear argument first this morning in No. 95-6, Norfolk and Western Railway Company v. William J. Hiles.

Mr. Phillips.

Carter G. Phillips:

Thank you, Mr. Chief Justice, and may it please the Court:

This case involves the proper interpretation of section 2 of the Safety Appliance Act, which is quoted on page 2 of the petitioner’s brief, and which states that it shall be unlawful for a railroad to use on its line… excuse me… any car not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.

In this case the respondent, a switchman at the rail yard in St. Louis, Missouri, injured his back while attempting to pull a drawbar into alignment that had become misaligned almost certainly as a consequence of having been disconnected from a prior car on a curve.

Sandra Day O’Connor:

Mr. Phillips, was the drawbar technology essentially the same at the time the statute was enacted as it is today?

Carter G. Phillips:

Yes, Justice O’Connor.

I don’t think there’s much in the way of a significant advance since 1893.

Sandra Day O’Connor:

And so at the time that the statute we’re reviewing was adopted, it was necessary for the drawbar to be physically adjusted at times between the cars.

Carter G. Phillips:

Yes, Justice O’Connor, I believe that’s correct.

As the D.C. Circuit said in the Lewis case, that if you accept the notion that any misaligned drawbar violates the Safety Appliance Act, then every railroad has been in noncompliance with that act since 1898 when it went into effect, which means that every railroad has been subject since 1898 to $100 fines for every such violation, which might have actually saved the Federal Government its budget problems today, but clearly would have done so on the back of the railroads in ways I don’t think Congress intended.

What we have here is an injury that falls far afield from what Congress had in mind in 1893 when it acted to protect railroad workers from the possibility of being crushed between railroad cars as a consequence of the old-fashioned link and coupling devices used.

Anthony M. Kennedy:

Could you just refresh my memory?

If the employee doesn’t recover in this suit, what recovery does he have?

Is there a workmen’s compensation scheme?

Carter G. Phillips:

There’s the Federal Employers’ Liability Act that would have been available to him had he chosen to bring that action.

That, of course–

Anthony M. Kennedy:

Can he still bring that action?

Carter G. Phillips:

–I would assume at this stage it’s too late, that the statute of limitations would have run.

It seems to me it was a conscious choice by the employee in this case to bring this action exclusively under the Safety Appliance Act and to do so to obtain the benefits under State law, the–

Anthony M. Kennedy:

Do you have to show some negligence under FELA?

Carter G. Phillips:

–He would have to show some negligence under FELA, and respondent has steadfastly avoided any effort to attempt to do that in this case.

Anthony M. Kennedy:

So, if there’s an on-the-job injury with no negligence, is there ever a workmen’s compensation scheme?

Carter G. Phillips:

Not to my knowledge, no, Your Honor.

The required negligence… it’s the only scheme that stands out in this particular way.

On the other hand, of course, unlike most workers’ compensation schemes, where there is a fairly fixed cap on the recovery, there’s no similar cap on the recovery under FELA.

As a consequence of that, employees tend to get significant recoveries.

Ruth Bader Ginsburg:

The Jones Act picks up on the same thing.

So, it’s for seamen as well as railroad workers.

Carter G. Phillips:

The seamen have the same… that’s correct, Justice Ginsburg.

Ruth Bader Ginsburg:

You mentioned the Lewis case and as far as fines are concerned, you’re certainly right, but what do you make of this statement in Lewis that the railroad’s duty is, as far as the worker is concerned and the worker’s injury… it’s a duty not just to provide proper equipment, but to guarantee its performance.

That seems to say the… there can be no fine against the railroad but there is a guarantee to the worker.

Carter G. Phillips:

I guess I would have two responses to that, Justice Ginsburg.

First, I think to the extent that that suggests that there might be some potential claim as a matter of negligence or even a claim under the Safety Appliance Act where the only evidence is a malfunction and no evidence put forward by the railroad as to why the malfunction occurred, that is, to show that… simply a case of a misaligned drawbar or an unopened knuckle… sure, there could be recovery under those circumstances, although I wouldn’t expect that to happen very often.

The alternative, though, is it’s difficult to square the broader understanding of that language with the statutory scheme because it’s reasonably clear to me that in order to recover under… through FELA for a Safety Appliance Act violation, it has to be a Safety Appliance Act violation.

You cannot stretch the Safety Appliance Act to cover situations that it wasn’t designed to cover simply because you end up ultimately obtaining your recompense through FELA as a technical matter.

It seems to me you’d have to conclude that a misaligned drawbar is a violation of section 2.

Ruth Bader Ginsburg:

Are you saying politely that Judge MacKinnon was incorrect to the extent that he said that the… that there is a guarantee of the performance?

Carter G. Phillips:

I think you can justify that statement in the very limited sense in which this Court has in the past recognized that if all the proof you have is a malfunction and nothing else comes in, there could be liability under those circumstances.

To the extent that that’s what his statement means, I don’t have any quarrel with it.

To the extent he goes beyond that, you’re right, Justice Ginsburg.

I was being polite in suggesting I didn’t agree with him.

William H. Rehnquist:

Well, you say that if there’s just a malfunction and no evidence produced on the part of the railroad, there could be liability.

What would be the theory or the explanation of liability there?

Carter G. Phillips:

Why would there be liability in that situation?

William H. Rehnquist:

Yes.

Carter G. Phillips:

Well, this Court’s decisions suggest that there are essentially two ways to demonstrate a violation of the Safety Appliance Act: either there has been a malfunction of the coupler or there has been a defect in the coupler.

In the malfunctioning situation, what the Court says is, we will presume, if it malfunctioned, that it had something to do with an equipment failure.

But what the Court said quite plainly in Affolder was that that presumes in the first instance that the couplers were set to operate normally, and if the couplers were not set, in that case by the way, opening of the knuckle… in our case I submit by way of aligning the drawbar so that the knuckles would in fact connect… then it seems to me, as the Court said in Affolder, we would have a good defense under that circumstance.

So, really the way the particular problem arises simply is a technical kind of pleading problem.

If there had been in this case a failed coupling, I think it might have been the case that we would have been required to come forward to show that it was merely still a misaligned drawbar problem, but in this case there was no malfunction.

There was no effort in coupling these particular cars and, therefore, we were never even put to the necessity of making that particular proof, Mr. Chief Justice.

William H. Rehnquist:

So, you say your case differs from the hypothetical in that there was no malfunction here?

Carter G. Phillips:

That’s correct, Mr. Chief Justice.

We have no malfunction and we have no defect.

And when you don’t have either of those things, I would have said that the Safety Appliance Act issue comes to a close.

Respondents, however, because they can’t satisfy the traditional standards that this Court has adopted has posed two much broader tests to be applied.

One is, is that anytime you have a coupling problem which requires an employee to go between the ends of two cars, tracking the end language of section 2 of the Safety Appliance Act, that then any injuries that arise under those circumstances ought to be compensable under section 2 through FELA.

And our answer to that is that that simply defies the language of that statute.

That… this is not a statute that imposes operational restrictions on how railroads go about their business.

Carter G. Phillips:

What the language about going between two cars does is fairly describe the type of coupler that Congress meant to require in 1893.

And a little bit of history here goes a long way to giving content to that particular phrase.

What we knew at the time was that in 1893 automatic couplers were fairly new to the scene, and Congress did not want to mandate any particular type of coupling and uncoupling mechanism.

It simply wanted to describe the type of a device that it wanted implemented by 1898, and therefore what the… as the Court again in the D.C. Circuit said in the Lewis case, what we know is that that independent requirement about going between cars is not itself an independent prohibition under the act.

Part of the reason we know that it can’t be really a significant independent requirement under the act is it doesn’t even modify, by its own terms, the fact of coupling.

Now, this Court has applied that language to the coupling as a reasonable, I think, interpretation of probably Congress’ intent, but it seems quite unlikely that Congress would have meant to make going between cars the ultimate sort of sine qua non of a violation of the Safety Appliance Act and not had that language actually modify, by its own terms, that coupling process.

Stephen G. Breyer:

Can I ask you a technical question?

There isn’t a drawing anywhere of what these things look like I guess in the record, is there?

Carter G. Phillips:

In the record–

Stephen G. Breyer:

It would have been helpful because I’m trying to figure it out and I might have gotten this wrong.

I guess what it is is a car like this.

Carter G. Phillips:

–Right.

Stephen G. Breyer:

And then there’s a thing that juts out from the car.

Carter G. Phillips:

Drawbar.

Stephen G. Breyer:

And it has a knuckle on the end.

Carter G. Phillips:

Right.

Stephen G. Breyer:

And the thing that juts out is a drawbar.

Carter G. Phillips:

Right.

Stephen G. Breyer:

And sometimes you have to have a little give because it moves back and forth when they go around curves.

And sometimes when it gets over here, it gets stuck over here.

Carter G. Phillips:

Right.

Stephen G. Breyer:

And then the person has to go between the car and move it back here.

Carter G. Phillips:

Right, although–

Stephen G. Breyer:

Is that right?

Carter G. Phillips:

–when he does that, obviously, he doesn’t have to be right between the cars.

The cars can be quite far apart.

Stephen G. Breyer:

Well, why didn’t somebody think of just putting a spring on it so the spring makes it come back?

Carter G. Phillips:

I assume… I mean, there have been experiments made over the past 80, 90 years trying to come up with a mechanism to make it spring back, and–

Stephen G. Breyer:

Actually my law clerk found one in the Car Locomotive Cyclopedia for 1974.

They have four pictures, and it says, this is a device.

Stephen G. Breyer:

It keeps a free coupler centered in relation to the end.

If the coupler is swung wide when disengaged from another, the device instantly returns it to center position.

Carter G. Phillips:

–Right.

Stephen G. Breyer:

Is that what we’re talking about?

They have four pictures of it.

Carter G. Phillips:

I assume that would be one of the–

Stephen G. Breyer:

And he also found a place where… he was quite ingenious to find all this stuff, but he found a place where they’re doing research right now.

It says 4 percent of the employee’s lost time is associated with uncoupling locomotives, and we’re going to do a research project.

They’re… but my point is that this material I’m reading to you makes it sound as if the problem is a design problem.

It isn’t just a maintenance problem.

Carter G. Phillips:

–No.

I–

Stephen G. Breyer:

And if it’s a design problem and not just a maintenance problem… I’m sure Congress didn’t want to stop people from going in between cars to maintain oil–

Carter G. Phillips:

–Right.

Stephen G. Breyer:

–rust-free paint, but they did have in mind designing.

Carter G. Phillips:

Well, that goes to the second broad theory that the respondents put forward, which is that you really have a duty to come up with some system to realign these drawbars.

Stephen G. Breyer:

Why not?

Carter G. Phillips:

The statute says–

Stephen G. Breyer:

I mean, why not?

If 4 percent of people’s lost time is lost because of the… I’m not saying that I… how I view this case.

Carter G. Phillips:

–No, no.

Stephen G. Breyer:

I’m simply trying to figure out, is it more like maintaining, you oil the thing, or is it more like designing a better coupler?

So, I look at this stuff and say, well, 4 percent lost time, the Association of Railroads says we’re going to do research.

This is a… they have four drawings of springs.

It sounds like design and if it’s design, isn’t that the kind of problem Congress had in mind?

Carter G. Phillips:

Well, I don’t think it’s the kind of problem Congress had in mind because we know that Congress dealt specifically with drawbars in the Safety Appliance Act itself and in section 5 said, set up a drawbar at a certain height.

So, Congress knows the difference between coupling mechanisms and the drawbar, and Congress dealt with the drawbar.

Now, with respect to–

Sandra Day O’Connor:

Well, how do we know that the drawbar is not part of the coupling device?

Carter G. Phillips:

–Well, we can… we know that Congress at least viewed them differently because section 2 talks about coupling couplers and section 5 talks about drawbars.

Carter G. Phillips:

So, Congress at least had in mind the possibility of the two being distinct, and as a consequence of that, that seems to me a reasonable basis for answering Justice Breyer’s point.

Stephen G. Breyer:

No, but they had… the old system was a system where you had a thing sticking out of the car called a drawbar.

Carter G. Phillips:

Right.

Stephen G. Breyer:

And it had a link at the end.

Carter G. Phillips:

Right.

Stephen G. Breyer:

And the link went inside another drawbar, I take it, called a pocket, and then you dropped a pin in.

Carter G. Phillips:

Right.

Stephen G. Breyer:

So, you’d think the coupling system was that whole thing, wouldn’t you?

The thing that sticks out, the link, the pin, and–

Carter G. Phillips:

I’m not trying to draw too fine a distinction here.

All I’m saying is that Congress clearly had the two different things in mind.

This is an automatic coupling requirement, not an automatic realignment of the drawbar requirement.

And the fact that Congress discussed specifically drawbars simply creates an inference to me that Congress didn’t go as far as what the respondents have proposed as far as the obligations under the Safety Appliance Act.

I think the more fundamental–

Antonin Scalia:

–Well, excuse me.

I thought your fundamental response is simply even if that were so, this is not what Congress meant by the necessity of men going between the ends of cars.

Carter G. Phillips:

–Right.

Antonin Scalia:

They’re talking about going between the ends of cars to effect the immediate coupling or uncoupling.

Carter G. Phillips:

Right.

My… well, my… it seems to me the respondent has made two arguments.

One is based on that language, and I don’t think that language carries with it an independent substantive requirement.

Now, the respondents do make the alternative argument that under any circumstances we should have some kind of a duty to guarantee that drawbars can be realigned regardless of what it takes, that we have a technological responsibility that goes forward.

And all I was trying to say to Justice Breyer is I don’t think that’s what this statute ever had in mind.

I don’t see anything in the language of the statute that would support it, and indeed, the absence of an independent requirement of having to go between the cars is the complete–

Antonin Scalia:

Argument.

It becomes part of that same argument.

Carter G. Phillips:

–I may have parsed their argument too finely for that purpose, but I do think the point remains the same which is there is no duty on the railroads to devise the kind of technological change that Justice Breyer–

Stephen G. Breyer:

How many injuries were there last year, if you know, approximately caused when people went between cars to realign misaligned drawbars?

Do we know the answer to that question?

Carter G. Phillips:

–The answer to that was… is in the footnote in our brief.

Carter G. Phillips:

As I recall, it depends on which years you pick.

One year there was one death and a handful of injuries.

Stephen G. Breyer:

But is that… I know that… I do recall I had some numbers on that, but I didn’t know that that was related to going between cars to cure the problem of misaligned drawbars.

Carter G. Phillips:

I don’t think anybody collects the data on that close a point.

I think what they do is they collect data on coupling problems, and then whatever coupling problems may… presumably you could have an injury if somebody is going in to lubricate the coupler so that–

Stephen G. Breyer:

Yes.

The statute in any case requires the necessity of going between the ends of the vehicles.

Right?

Carter G. Phillips:

–Yes, Your Honor.

Antonin Scalia:

And someone might be injured going between the ends of vehicles when it was not necessary if the vehicles closed while the person is in there.

Carter G. Phillips:

Right.

Antonin Scalia:

But your point is, I take it, that there’s no necessity of going between the ends of vehicles within the meaning of the statute–

Carter G. Phillips:

Within–

Antonin Scalia:

–with this coupling system.

Carter G. Phillips:

–That’s correct, within the meaning of this statute.

Antonin Scalia:

And this individual wasn’t hurt by reason of being between the two cars at all.

He strained his back as I gather, trying to straighten it out.

Carter G. Phillips:

That’s right.

If he had–

Antonin Scalia:

It could have happened if the car had been up on a mount.

Carter G. Phillips:

–Absolutely.

If he had been asked to bring a coupler in and put it on the end of the drawbar and picked up the coupler and injured his back, he would have exactly the same injury and exactly the same situation, but there wouldn’t be a serious argument that that violated the Safety Appliance Act.

Again, that’s a situation where the Federal Employers’ Liability Act would apply.

I do want to answer Justice Breyer’s one concern about this technology and whether it exists.

The most recent evidence I saw from the AAR was that on the devices that have these kinds of springs, something in the neighborhood of 30-some percent were the only… were in operation… were actually working, even on… where they have those devices.

For some reason… and I don’t frankly know the technical explanation for it, but for some reason these springs don’t hold up very well and in that sense probably pose at least as much of a risk of having people go in there–

William H. Rehnquist:

Is this in the record, Mr. Phillips?

Carter G. Phillips:

–This is in the D.C. Circuit’s opinion in the Lewis case.

There’s a discussion of this evidence.

That’s all.

Carter G. Phillips:

I just mentioned it for that purpose.

Stephen G. Breyer:

The reason that I find it quite relevant… and I’m uncertain about how to proceed… is if in fact there are a lot of people who are hurt by this and they have to go between the cars to realign the drawbars and you could cure it at very little expense with a rubber band or a spring, perhaps it does fall within the statute which was worried about going between the bars and being hurt for coupling.

Carter G. Phillips:

Well, I would go back–

Stephen G. Breyer:

If it’s just like maintenance where you oil it occasionally, then it wouldn’t.

Carter G. Phillips:

–Well, I would go back to Justice Scalia’s point because I think you cannot get to that stage unless you conclude that there is an independent prohibition against going between cars.

And that I don’t think the purpose or the language of this statute will sustain.

And as a consequence of that, to the extent that there is a problem that requires a resolution, whenever they get back in order again, it should be dealt with across the street and not by the Court here.

At the end of the day, what we have here is an injury that is nowhere near the kinds of injuries that Congress had in mind when it enacted the Safety Appliance Act in 1893.

This is an injury that is fully compensable if there has been negligence by the railroad under the Federal Employers’ Liability Act.

In addition to that, of course, the railroad would have the opportunity under those circumstances to demonstrate contributory negligence and thereby reduce the employee’s recovery as a consequence of that contributory negligence.

I think that is a balanced scheme and that this Court ought not to unbalance that scheme by giving the Safety Appliance Act an unduly broad interpretation.

For that reason–

Ruth Bader Ginsburg:

Mr. Phillips, I think Judge MacKinnon was writing as of… what… 1983, and he said that after 90 years that the automatic realigning devices, as distinguished from automatic coupling devices, are still in the experimental stage and had been installed on less than 1 percent of the railroad cars.

Carter G. Phillips:

–Right.

Ruth Bader Ginsburg:

That was as of 1983 he was writing, and what you’re saying is that since that time there has not been any significant change.

Carter G. Phillips:

As I understand it, there has not been any significant technological advance that would eliminate what problems existed in the past.

That’s my understanding.

Again, none of this happens to be in the record, though.

If there are no other questions, I’d reserve the balance of my time.

William H. Rehnquist:

Very well, Mr. Phillips.

Mr. Mann, we’ll hear from you.

Lawrence M. Mann:

Mr. Chief Justice, and may it please the Court:

I have a photograph that may assist the Court.

This is the actual car that was involved in the accident.

William H. Rehnquist:

Where in the record… is that a photograph of something that’s in the record?

Lawrence M. Mann:

That’s an exhibit, Your Honor.

William H. Rehnquist:

An exhibit.

Lawrence M. Mann:

Yes.

And what I want to point out to the Court is that the rail industry has dealt with only one aspect of coupling and uncoupling.

They have dealt with the uncoupling process.

Lawrence M. Mann:

They have provided a lever here that you see which allows the coupler to uncouple without the necessity of anyone going in between the cars.

What they haven’t addressed is the coupling procedure.

They have not touched the coupling device to prevent it from going back and realigning.

And, Justice Breyer, the passenger service in this country has that type of device in effect.

They use it and they use it without major problems.

The freight industry–

William H. Rehnquist:

Do we know that from the record?

Lawrence M. Mann:

–Mr. Chief Justice, I was involved in the case at this–

William H. Rehnquist:

Do we know that from the record what you just–

Lawrence M. Mann:

–Not the record.

It’s in my brief.

William H. Rehnquist:

–I… yes, I suspect you… I suggest you confine yourself to the record.

Lawrence M. Mann:

The point is that this is a performance standard statute.

The Congress was not concerned with how the industry attempted to prevent employees from going in between the cars.

They said to the industry, take care of the problem in coupling and uncoupling.

Take care of that problem.

Do not allow the employees to go between the cars in either process.

Antonin Scalia:

Mr. Mann, I assume when that coupling device is initially manufactured, somebody had to be there to put it on.

Right?

And the car that that car would first be coupled to was somewhere down may be miles away, but it was somewhere down the railroad tracks.

Lawrence M. Mann:

Correct.

Antonin Scalia:

And one could say that the person who installed that coupler was going between the two cars, namely, between the car he manufactured and the car it would ultimately be coupled to.

Now, do you think that’s what the statute refers to?

Lawrence M. Mann:

No, sir.

Antonin Scalia:

Well, he was going between the cars.

Lawrence M. Mann:

Only the–

Antonin Scalia:

Okay.

So, we have to draw a line somewhere.

Right?

It has to be–

Lawrence M. Mann:

–Only the process of coupling and uncoupling.

The maintenance testing and inspection of the car… there is no problem here.

Antonin Scalia:

–All right.

Now, is the process of coupling or… you say the process does not begin with the installation of the coupler.

Lawrence M. Mann:

It does not.

Antonin Scalia:

Why does it begin with the setting of the coupling mechanism so that they will engage properly?

Lawrence M. Mann:

Because it will not engage unless it’s set properly.

Antonin Scalia:

It will not engage if it’s not installed either.

Lawrence M. Mann:

But that is not covered under the statute, Justice Scalia.

Antonin Scalia:

I agree but I don’t see why setting the arm is covered either.

It seems to me what the statute addresses is the immediate action of coupling and uncoupling which is physically risky because in the old days the employees faced the necessity, which is what the statute refers to… the necessity of going between the cars while they were close together and in the process of coupling.

Lawrence M. Mann:

This–

Antonin Scalia:

That isn’t necessary now in order to set the arms.

Lawrence M. Mann:

–This Court has already ruled many years ago in a case called Wagner there as no movement of the car.

You don’t have to have movement of the car.

Antonin Scalia:

I’m talking about movement.

I’m talking about whether the act in question is an act that is involved where the cars are necessarily in proximity because they are in the act of coupling or uncoupling.

Lawrence M. Mann:

It’s not only the proximity, but in the preparation of the coupling.

Antonin Scalia:

Oh, but you say that installing the–

Lawrence M. Mann:

That’s not preparation of the coupling, Justice Scalia.

Antonin Scalia:

–It isn’t?

Lawrence M. Mann:

No.

Antonin Scalia:

You don’t think putting it in in the first place is preparation?

Lawrence M. Mann:

No.

It’s not in the preparation of coupling.

No, sir.

That could be in a shop somewhere.

Antonin Scalia:

Well–

Lawrence M. Mann:

That’s certainly not in the preparation of coupling in my judgment.

Antonin Scalia:

–I see.

Antonin Scalia:

I see.

So, installing it wouldn’t have been–

Lawrence M. Mann:

No.

Antonin Scalia:

–wouldn’t have been covered.

Lawrence M. Mann:

No.

Antonin Scalia:

But as soon as he installs it, he moves the arm to the proper central position.

Then he is covered.

That’s–

Lawrence M. Mann:

I disagree.

No, sir.

Not until the cars are on the tracks–

Antonin Scalia:

–Within some proximity.

Lawrence M. Mann:

–Some proximity.

Antonin Scalia:

I see.

Okay.

So, we’re talking about how much proximity?

Lawrence M. Mann:

I don’t think it matters–

Antonin Scalia:

How much proximity was there here?

Lawrence M. Mann:

–I think there was a car length or maybe two, but it doesn’t matter.

The fact is if the employee has to go in preparation of the coupling procedure, it doesn’t matter what time or how long that time is in his work day.

The purpose is to prevent that employee from going in between the cars for coupling or uncoupling so that if that car sits on the track, say, even an hour, so long as it is in preparation of the coupling procedure, I submit to you, Justice Scalia, it’s covered.

Antonin Scalia:

The language, it seems to me, at issue here in the revised statute is couplers coupling automatically by impact without the necessity of individuals going between the ends of vehicles.

Lawrence M. Mann:

It could not happen in this case.

It could not happen because this drawbar was skewed, and had the crews attempted to push the cars together to collide for coupling, it would have never happened.

Antonin Scalia:

What is your distance that you… you say two car lengths is not enough.

What about 10 car lengths?

Lawrence M. Mann:

It doesn’t matter as long as–

Antonin Scalia:

Half a mile?

Lawrence M. Mann:

–If it’s in the same track and they’re going… and the locomotive is ready to push that car and it… this was an operation.

We had locomotive in the track.

Lawrence M. Mann:

They were ready to push the cars together.

That’s why the employees were required to align it.

They were ready to do it.

Antonin Scalia:

And they don’t have to be in the process… the immediate process of coupling.

Lawrence M. Mann:

Well, they were.

They were in the preparation.

They couldn’t couple–

Antonin Scalia:

I mean, yes, manufacturing is preparation in a sense too.

You have to draw the line somewhere.

Lawrence M. Mann:

–I agree.

Antonin Scalia:

And it seems to me under this statute the reasonable line to draw it is when the cars about to be humped together in order to effect the coupling or are being pulled apart in order to disengage it.

Lawrence M. Mann:

Well, I submit, Justice Scalia, the immediate preparation of that car so that that could occur would be encompassed there.

Sandra Day O’Connor:

Well, Mr. Mann, I have trouble knowing why we should interpret the statute… the word coupler… as including the drawbar.

I’m not sure it does.

Lawrence M. Mann:

Justice O’Connor–

Sandra Day O’Connor:

They may well be different things.

They are dealt with differently in the statute.

And one could envision a coupler as not including the drawbar as such.

Lawrence M. Mann:

–But the drawbar is all part and parcel… there’s the draw head, which is the actual coupling device, and then it is attached in one solid piece of equipment.

It’s not separate in any way.

It’s one solid piece of equipment… this whole drawbar… and part of that is the head of the drawbar.

Sandra Day O’Connor:

But it appears from the language used in the different sections of the statute that Congress saw these as different things.

Lawrence M. Mann:

I… they dealt with particular parts of the whole drawbar, but they’re not different.

It’s all part and parcel of the same piece of equipment.

It’s not… you can’t detach it.

I mean, you could… legally you could take the whole part off, but you don’t take one off and leave the rest sitting there.

I–

Sandra Day O’Connor:

It seems like what they were after was a system to replace the old method where somebody had to go between the cars to put the pin in to couple the cars.

Lawrence M. Mann:

–That’s correct.

Sandra Day O’Connor:

And that it was this joinder business where they come together and the old pin used to have to go that they were talking about–

Lawrence M. Mann:

Correct.

Sandra Day O’Connor:

–not the drawbar that swings back and forth of necessity to allow the train to turn.

Lawrence M. Mann:

But that pin could never have been placed in the train unless they were together.

Sandra Day O’Connor:

Well, but it’s sort of the… you know, the head bone is connected to the neck bone is connected to the backbone, et cetera.

Lawrence M. Mann:

Yes.

Sandra Day O’Connor:

And at some point they’re all one.

Lawrence M. Mann:

I agree.

Sandra Day O’Connor:

But I’m not sure that’s the case here.

Lawrence M. Mann:

Well, I think it is important to go back.

What was Congress trying to prevent here?

Injuries and deaths.

And how could they do it?

The only way they–

Sandra Day O’Connor:

Well, but the most common thing was this business of having to put in the pins.

That’s what they were focusing on.

They didn’t want people to have to go in there and physically drop in the pins.

Lawrence M. Mann:

–Correct.

That’s part of it.

Sandra Day O’Connor:

But I… it is not apparent to me that they were concerned about the necessity of occasionally moving the drawbar.

Lawrence M. Mann:

Well, you did not have the same type of technology at that time as you have today.

Congress… it is a performance standard, Justice O’Connor, and being a performance standard, Congress didn’t care how you do it.

Congress said to the industry, do it, protect the employee in this procedure.

David H. Souter:

Could you have done it in 1893?

In other words, we’ve heard talk about what the technology may or may not allow today.

What do we know about the technology in 1893?

I gathered from Judge MacKinnon’s opinion that he was assuming the technology didn’t exist in 1893 so that in fact one… on your theory of the statute, the railroad could not have conformed in these situations.

Lawrence M. Mann:

But, Justice Souter, Judge MacKinnon stated, misaligned drawbar or a closed coupler is sufficient to establish liability under section 2.

David H. Souter:

Well, I’m talking about what he was saying about the technology.

Lawrence M. Mann:

The technology.

David H. Souter:

Did the technology exist in 1893 to… in effect, to conform to the standard of the statute as you read it?

Lawrence M. Mann:

Not at that time, but I think that that–

David H. Souter:

Well, why would Congress have passed a statute which assumed a technology that didn’t exist?

If that’s what it wanted to do, why wouldn’t… why wouldn’t it have been a lot simpler for Congress to say, look, the railroads are absolutely liable without fault whenever anybody gets hurt between two cars?

If that’s what they wanted to accomplish–

Lawrence M. Mann:

–No.

David H. Souter:

–why didn’t they say that instead of writing a statute which is couched in terms of what is mechanically possible and at a time when it was not mechanically possible to guarantee the kind of degree of safety that you claim is inherent in the standard of obligation?

Lawrence M. Mann:

I think there are… there may be two answers to that.

First of all, technology was just emerging.

Congress didn’t know nor did it concern itself with how this performance standard was to be performed.

What Congress was concerned with is protecting the worker during that procedure, whatever that procedure is.

And I could envision, Justice Souter, of having a large rod standing on the outside of the car and simply pushing it, but the industry hasn’t provided that.

David H. Souter:

Well, let me ask you another question.

It’s a simple question and it goes to what I’m seeing in that picture.

Why doesn’t the… why isn’t it possible for that lever, which the picture shows, to align the drawbar prior to coupling?

Lawrence M. Mann:

Well, I’m not saying the technology could not be devised.

David H. Souter:

It just looks as though that’s what it could do and maybe it isn’t.

Lawrence M. Mann:

Well, here it’s attached.

It doesn’t provide any movement.

It’s just an open and shut type of lever here.

But I–

David H. Souter:

What does it open and shut?

The knuckle?

It pushes the pin in.

Lawrence M. Mann:

–It opens this part here so that–

David H. Souter:

Oh, oh, I see.

It doesn’t move the bar back and forth.

Lawrence M. Mann:

–No, it doesn’t.

It just opens.

David H. Souter:

I see.

Lawrence M. Mann:

I’m not suggesting that they couldn’t devise it.

Lawrence M. Mann:

It’s not unlike the old Pinto cases where it took $10 to put a valve in.

It’s cost.

It’s just economics.

It’s all it is.

Antonin Scalia:

It didn’t take a century for somebody to get on the Pinto.

You’re saying that this thing was in violation of the law for a century.

Was there any Federal agency charged with enforcing this?

Lawrence M. Mann:

Starting in 1970.

Antonin Scalia:

Before 1970, there was–

Lawrence M. Mann:

With the Interstate Commerce Commission.

Antonin Scalia:

–Of happy memory.

[Laughter]

For a century it had the authority to enforce this thing and did nothing about it you’re telling us.

Lawrence M. Mann:

Well, I don’t know that.

I’m not–

Antonin Scalia:

You don’t know the contrary either.

Lawrence M. Mann:

–I… that’s not in the record anywhere that there was no enforcement.

Antonin Scalia:

I know.

That’s exactly what I’m pointing out.

This thing has been going on for a century and we have no indication not only of anybody recovering previously because of this safety defect, but of any Federal agency trying to enforce the safety requirement.

Lawrence M. Mann:

The… two things.

One is the Court has addressed injuries occurring in this type of situation, not specifically the misalignment, but in other–

Ruth Bader Ginsburg:

Mr. Mann, apart from what the courts have done, in response to Justice Scalia’s question, isn’t the Lewis case highly relevant because that was an agency regulation?

Lawrence M. Mann:

–Yes.

Ruth Bader Ginsburg:

It was a regulation that said it’s okay to use this hook procedure.

Lawrence M. Mann:

That’s correct.

Ruth Bader Ginsburg:

Now, do I understand your reasoning with respect to the drawbar to be inconsistent with the result that was reached in Lewis that it was not… it was okay to have this regulation that permitted the hook procedure, even though it involved going between the cars at least with part of one’s body?

Lawrence M. Mann:

The only part of one’s body… if you recall, Justice Ginsburg, the hook came into play after the coupler was opened part way.

This is not totally effective and efficient because it doesn’t always open it fully.

So, in Lewis, there was an additional hook used and the employee stood beside the car, of course had to reach his arm inside, and pull it out.

Lawrence M. Mann:

That’s that piece of equipment that was used in Lewis.

And the court… I mean, I can’t take issue with the decision of the court, but the court further said in that case that if there is a misaligned drawbar, then that is covered as a violation under section 2 of the act.

And that’s just what we have here.

Anthony M. Kennedy:

Could you tell me a little bit about your rule of causation and tell me what the rule of causation is?

Suppose the employee sees the misaligned drawbar and he walks quickly to correct it before he gets between the cars and stumbles and hurts himself.

Is there liability?

Lawrence M. Mann:

No.

I don’t think there’s liability because I think you have a super-intervening cause.

Anthony M. Kennedy:

If he stumbles in between the cars, is there liability?

Lawrence M. Mann:

Until he… I think there’s a super-intervening cause.

Until… there’s… well, first of all–

Anthony M. Kennedy:

Well, there’s cause in fact.

If it hadn’t been for the drawbar, he–

Lawrence M. Mann:

–Yes.

Anthony M. Kennedy:

–wouldn’t have moved and wouldn’t have stumbled.

Lawrence M. Mann:

The violation exists.

Anthony M. Kennedy:

So, there must… so, you must be saying that there is some requirement of proximate causation between the defective operation of the mechanism and the injury.

Lawrence M. Mann:

There–

Anthony M. Kennedy:

You would agree with that.

Lawrence M. Mann:

–Yes.

And I further state that there already was the violation, Justice Kennedy.

The violation occurred because there was the necessity of the employee to even have to go in between.

The violation already occurred.

Now, whether or not there’s causation for recovery is a different issue, of course, but as far as the violation of section 2, it exists once there is a skewed drawbar.

Stephen G. Breyer:

One obvious reason–

–But in–

–Sorry.

One more quick.

In this case, as I understood it, your position is that the… whether or not the drawbar was stuck was irrelevant, but it seems to me that… am I wrong about that?

Lawrence M. Mann:

It’s not irrelevant.

Lawrence M. Mann:

The Court has held in a number of cases that you do not have to establish a defect in a car to prove violation of section 2.

Affolder was one, a O’Donnell case, Carter case.

There are several cases, and the Court said that over and over.

And that’s the gist of the railroad’s argument here, that you must show a defect before you can recover.

But if… if… the performance requirement is not there, this statute says that’s a violation because it’s up to the carrier to protect the employee.

Otherwise, you’re going to continue to have employee injuries and deaths.

William H. Rehnquist:

And what exactly is the performance requirement that you deduce from the statute?

Lawrence M. Mann:

Mr. Chief Justice, I am saying that the performance requirement is that in every case, not just in… when there’s moving equipment, not just when there’s a defect, in every case where the couplers do not couple automatically and cannot couple automatically because of the way the equipment is designed, that there’s a violation.

William H. Rehnquist:

Even if it’s a–

Lawrence M. Mann:

Yes.

William H. Rehnquist:

–Even if it’s a misalignment and not an actual failure of the coupler.

Lawrence M. Mann:

That’s correct.

And the Court has already ruled on that, that you do not have to show a failure.

William H. Rehnquist:

Yes, but I don’t think they’ve extended beyond failure of the couplers.

Lawrence M. Mann:

This is a failure of the coupler.

William H. Rehnquist:

In what respect?

Lawrence M. Mann:

Because it can’t couple automatically.

William H. Rehnquist:

But it wasn’t designed to couple if the thing is misaligned.

Lawrence M. Mann:

But that’s the whole point of our case, Mr. Chief Justice.

If the statute doesn’t mean that it must be aligned, of course, then we lose, but any–

Ruth Bader Ginsburg:

Mr. Mann, aren’t you leaving something out when you say the employee doesn’t have to show any defect and you cited the Affolder case?

But the employer then, the railroad, can show there was no defect, and that’s a defense.

Lawrence M. Mann:

–The Court has held in several cases that’s not the fact.

That is totally immaterial to the case.

Ruth Bader Ginsburg:

What case holds that the employer comes in… employee comes in and the employee then… railroad then says there was no defect?

Lawrence M. Mann:

I think O’Donnell case is clearly on point.

So is Carter.

O’Donnell, they said it doesn’t matter that you expect too much of the coupler.

Specifically the Court stated that.

Ruth Bader Ginsburg:

What is the case that says it is not a defense that the appliance was not defective?

Lawrence M. Mann:

I think those three cases would hold that.

I think a fair reading of O’Donnell would so state that.

Stephen G. Breyer:

Can I ask you what was… reference Justice Kennedy’s question, in this case wasn’t the injury he hurt his back?

Lawrence M. Mann:

In pushing, he… what he attempted to do–

Stephen G. Breyer:

Yes.

Lawrence M. Mann:

–Justice Breyer, is push it back in line.

Stephen G. Breyer:

But is that the kind of injury that Congress was worried about in passing the statute?

I would have thought that people being crushed or something or having their fingers stuck in the pins.

Lawrence M. Mann:

That was certainly part of it.

Stephen G. Breyer:

Was it… I mean, you can hurt your back pushing anything in a railroad.

Lawrence M. Mann:

But it’s not… anything is not covered.

This is the only thing that Congress was concerned about, this procedure.

It’s so dangerous, and–

Stephen G. Breyer:

Because of bad backs because of pushing it, or because that you might get crushed?

Lawrence M. Mann:

–Well, either.

Stephen G. Breyer:

Either?

Lawrence M. Mann:

You–

Stephen G. Breyer:

But aren’t there a lot of heavy things that you push in the railroad?

Lawrence M. Mann:

–Yes, but not everything is of course a problem as–

Stephen G. Breyer:

Is there any indication that what Congress was worried about was the fact that it was heavy and you might hurt your back pushing it, any part of this device?

Lawrence M. Mann:

–Well–

Stephen G. Breyer:

Any part of the previous device?

Lawrence M. Mann:

–I submit it was broader than that.

They wanted–

Stephen G. Breyer:

Was there anything that suggests it was at least as broad as to catch that?

I mean, is there anything about bad backs and pushing things?

Lawrence M. Mann:

–Not bad backs per se.

Stephen G. Breyer:

Well, pushing.

Pushing.

You hurt your muscle because you pushed.

Lawrence M. Mann:

No, because Congress envisioned that it wouldn’t be necessary.

Stephen G. Breyer:

What I’m actually thinking too is one reason why this might not have come up before before the railroad commissions is no one has ever been hurt by this in a way in which Congress was worried about.

That is, their footnote says one person is killed and 136 injured in all coupling and decoupling accidents, of which pushing drawbars or having anything to do with misaligned drawbars must be a subset.

And so is there any information that anyone has been hurt in the manner that Congress foresaw by crushing or hands or something to do with it being a car other than just being a heavy weight to push?

Ever?

Lawrence M. Mann:

The Federal Railroad Administration in the accident/incident bulletins, Justice Breyer, is… has a breakdown of those that were injured in moving equipment, those that were injured in non-moving equipment, those that were killed in both–

Stephen G. Breyer:

And what is the answer then as to how many people were injured or killed in dealing with misaligned drawbars?

Lawrence M. Mann:

–I can’t… I don’t know.

Stephen G. Breyer:

We looked for it.

We couldn’t find it.

Lawrence M. Mann:

I don’t know.

But they do keep statistical data and whether it’s broken down that specific, I can’t answer.

Stephen G. Breyer:

So, then is the… if I thought that really what I’m trying to distinguish here is between what I’d call routine maintenance of things that occasionally cause trouble and serious design problems… and a serious design problem has to do with numbers and the kinds of injuries Congress thought about… then wouldn’t I have to decide this against you because the record isn’t… doesn’t have that information and I can’t get it enough?

Lawrence M. Mann:

Well–

Stephen G. Breyer:

Or would I decide in your favor on some presumption?

I don’t–

Lawrence M. Mann:

–Well, I… if you determined that this is not a design issue, then of course we would lose, but in all due respect–

Stephen G. Breyer:

–And how can we decide if it’s a design issue if we don’t have numbers that tell us how many people are hurt or killed compared with, let’s say, the difficulty of doing the redesign?

Lawrence M. Mann:

–Well, if a design is required, Justice Breyer, why does it matter how many?

If they require–

Stephen G. Breyer:

Because in fact you wouldn’t have to spend the entire gross national product to save somebody from having a bad finger because design is always a question of what kind of problem is caused to people and how difficult is it to solve the problem.

Lawrence M. Mann:

–Certainly Congress in 1893 didn’t know what the problem was going to be in 1996, but they did know enough about that procedure to say make it safe for the employee.

Stephen G. Breyer:

And safe is itself a word that implies that failure to do it hurts somebody and it’s possible to redesign your way out of it.

So, in that–

–Mr. Mann, the safe that they’re concerned about is not back safety.

I don’t see how you win if it’s a design defect either.

For all we know, the ultimate design that comes to solve the problem you’re concerned with is a design that enables this arm to be adjusted from inside the railroad car with just as much physical effort as it takes to do it from outside or from the side of the car so that he doesn’t have to go between the car, but he still has to push just as hard.

He would have hurt his back just the same way.

Lawrence M. Mann:

He would not have had a violation of section 2.

There may be some other violation but not of section 2.

William H. Rehnquist:

Mr. Mann, in O’Donnell the Court says on page 389, we hold that the Safety Appliance Act requires couplers which, after a secure coupling is effected, will remain coupled until set free by some purposeful act of control.

It seems to me that’s far short of standing for what you say it stands for.

Lawrence M. Mann:

But in–

William H. Rehnquist:

It then goes on to say, negligence is not required, which everybody concedes here.

Lawrence M. Mann:

–And it further, I think, Mr. Chief Justice, states that the railroad cannot avoid liability depending upon how difficult it will be for them to make a coupler that works in all situations.

William H. Rehnquist:

Yes.

It says the act requires a coupler, once it couples, stays coupled, but that really doesn’t cover your case.

Lawrence M. Mann:

But the dicta does, not the specific holding in the case, but the dicta certainly does because it states that you should not be… the railroad cannot escape liability by showing too much was demanded of it at 338 U.S. 393-394.

William H. Rehnquist:

But that’s with respect to couplers.

Lawrence M. Mann:

Yes.

William H. Rehnquist:

Not drawbars.

Lawrence M. Mann:

Well, if you’re drawing the distinction, I can’t argue that point because I don’t think there’s a distinction.

They’re part and parcel of the same piece of equipment.

I don’t know how you can–

William H. Rehnquist:

But it… as I understand it, it’s misalignment of the drawbars, isn’t it?

Lawrence M. Mann:

–The entire thing is misaligned.

The entire piece of equipment is misaligned.

You can’t… one part… it’s impossible to separate the two because here is the draw head and here is the device it is attached to, the whole drawbar, and I don’t see how you can distinguish–

Sandra Day O’Connor:

Well, in Affolder, there was also dicta in which the Court said, of course, the result assumes the coupler was placed in a position to operate on impact.

The railroad would have a good defense that the coupler had not been properly opened.

Lawrence M. Mann:

–Very logical of the Court because they had developed this technology to allow it to open and close without the necessity of the employee going between, but they haven’t addressed the other part of that statute, and that is the coupling part.

The uncoupling part they did address.

Antonin Scalia:

Mr. Mann, I want to get back to Palsgraf.

You seem to assume that if there has been a violation of the act, anything that occurs as… with but for causality by reason of that violation is recoverable.

Now, is that true?

Lawrence M. Mann:

The Court has held–

Antonin Scalia:

Just simply because the act has been violated even though the injury has nothing to do with the act’s violation.

Lawrence M. Mann:

–The Court has held that it’s absolute liability.

Anthony M. Kennedy:

Suppose that it’s misaligned, he has to go between the cars, and he gets bit by a snake.

Lawrence M. Mann:

Super-intervening cause.

Lawrence M. Mann:

It’s not caused by the–

Anthony M. Kennedy:

Well, why isn’t his bad back a supervening cause?

Lawrence M. Mann:

–Well, you’re talking about recovery for damages–

Anthony M. Kennedy:

I mean, you say supervening cause, but–

Lawrence M. Mann:

–liability–

Anthony M. Kennedy:

–Supervening causes are… there is a chain of factual causality here.

Lawrence M. Mann:

–Sure, but–

Antonin Scalia:

He pushed the bar.

That’s the supervening cause.

Lawrence M. Mann:

–The violation has already occurred.

The violation is that this is not aligned properly.

Anthony M. Kennedy:

Well, that’s the same case in the snake case.

Lawrence M. Mann:

Well, it’s similar because it is… the violation already exists.

The question of whether or not there’s recovery is a different aspect of liability.

Anthony M. Kennedy:

Well, that’s part of what we’re talking about I assume.

Lawrence M. Mann:

But in this case, we don’t have that snake bite.

We have the immediate issue of pushing the drawbar which they have not used their technology to correct.

Antonin Scalia:

But he might have had the push it from inside the car even if there had been no safety violation.

They might have devised a new system in which you push it from the inside instead of from the outside so you don’t have to go between the cars.

Lawrence M. Mann:

I don’t think there’s a–

Antonin Scalia:

So, you can’t say it was caused even but for by–

Lawrence M. Mann:

–I don’t think that’s–

Antonin Scalia:

–the safety violation.

Lawrence M. Mann:

–I don’t think that’s a violation of the statute if he’s inside the car.

Antonin Scalia:

Exactly.

That’s my point and he would have hurt his back the same way.

Lawrence M. Mann:

But if he’s between the car, it’s certainly a violation of the statute.

William H. Rehnquist:

So, anything that happens between the cars is a–

Lawrence M. Mann:

Not anything.

Only in the coupling and uncoupling procedure and in the preparation of that.

Lawrence M. Mann:

That’s the only thing that’s covered by the statute.

You have maintenance testing and inspection.

None of that is covered.

Sandra Day O’Connor:

–Well, the statute doesn’t say in preparation for coupling.

It doesn’t say that.

I think you’re grafting something on that isn’t in the statute.

Lawrence M. Mann:

There’s the Lewis case.

William H. Rehnquist:

The Lewis case is a court of appeals.

Lawrence M. Mann:

D.C. Circuit.

Yes, that’s correct.

William H. Rehnquist:

It’s not binding on us.

Lawrence M. Mann:

And it doesn’t specifically say that, but when you look at Wagner case, for example, there was no movement involved.

That was a person who was preparing… let me explain, if I may.

Sandra Day O’Connor:

Well, don’t we have some concern, when we’re talking about imposition of a rule of per se liability, to make sure that that’s what the statute was intended to cover?

Lawrence M. Mann:

Yes.

Sandra Day O’Connor:

I don’t see why we should make a stretch to pick up every conceivable kind of a result here.

Lawrence M. Mann:

I agree, Justice O’Connor, but in the preparation for it… I think it’s certainly reasonable to include preparation if there’s a necessity of someone going between the cars.

And I’ll refer you back to the old Wagner case of the Court.

That case, the employee was literally standing on this coupler–

William H. Rehnquist:

Your time has expired, Mr. Mann.

Thank you.

Mr. Phillips, you have 11 minutes remaining.

Carter G. Phillips:

Mr. Chief Justice, unless there are questions, I’m inclined to give you back my time.

William H. Rehnquist:

Very well.

The case is submitted.