Metro-North may be liable for intoxicated taxi driver's accident

This is a personal injury case brought under the Federal Employers' Liability Act (FELA). Plaintiff worked for Metro-North Railroad, which called her a taxi ride home. The taxi driver, who had no connection to the railroad, was intoxicated and got into an accident, injuring the plaintiff. Is Metro-North liable for this?

The case is Francois v. Metro-North Commuter Railroad, issued on July 11. Your first instinct is that the railroad would not be liable because it did not employ the taxi driver. But FELA is an interesting statute. "There is a considerably more relaxed standard of proof for determining negligence in FELA cases, and a strong federal policy in favor of letting juries decide these cases." The Second Circuit said that in 1993, and it says it again in this case. The other relevant principle is that, "at the summary judgment stage, a FELA action must not be dismissed . . . unless there is absolutely no reasonable basis for a jury to find for the plaintiff." See the word "absolutely"? You don't see that in other summary judgment contexts. It means we usually let these cases go to trial.

This case will go to trial. First, however, the Court of Appeals holds that the railroad is not directly liable for plaintiff's injuries because there is no evidence that Metro-North knew the driver had a propensity to drink before driving, or that the driver would drive unsafely. That claim is gone.

But the railroad may be vicariously liable for the accident. This will be up to the jury. Metro-North concedes the taxi driver acted as its agent in driving plaintiff. And while the taxi company served as an intermediary in that it dispatched the taxi driver, the railroad does not argue that the intermediary severs or affects the agency relationship between the railroad and the driver. 

The railroad may be vicariously liable even though the driver had been drinking, as the prior act of drinking to the point of impairment does not mean the driver was not working within the scope of his employment. The key here is "scope of employment," a legal term of art that means someone's bad acts are still imputed to the company so long as he was still doing his job. "Just because a driver was intoxicated when driving does not mean that he was acting outside the scope of his agency, but only that he failed to use reasonable care under the circumstances." The Second Circuit cites a Seventh Circuit case for that proposition, which is now good law in the Second Circuit. "Although the prior act of drinking alcohol was outside the scope of the driver's agency, the subsequent act of driving his taxi while on duty was at least arguable within it."

Finally, while the railroad argues that it was not foreseeable that the driver would be impaired, that is not enough for the railroad to win summary judgment. Here is how the Court of Appeals frames this issue:

Again, in terms of direct liability, Francois introduced no evidence that Metro-North had any reason to suspect that the taxi driver would be impaired when it hired him. But in terms of vicarious liability—when the tortfeasor is the taxi driver, rather than Metro-North itself—we ask a broader foreseeability question from the railroad-principal’s perspective:

What is reasonably foreseeable in the context of respondeat superior is quite a different thing from the foreseeable unreasonable risk of harm that spells negligence. When we talk of vicarious liability we are not looking for the employer’s fault but rather for risks that may fairly be regarded as typical of or broadly incidental to the enterprise he has undertaken. And we look at “the harm that is likely to flow from the employer’s activity despite the reasonable precautions that might be taken.” In sum, for vicarious liability, courts examine the foreseeability of a general, rather than specific, risk of harm.