The Court granted cert in two cases today: Norfolk Southern v. Railway Company v. Hartry et al. and Collins et al. v. Athens Orthopedic Clinic.
The first deals with whether negligence claims under the Federal Employers' Liability Act are precluded by regulations promulgated under the Federal Railroad Safety Act, and the second deals with whether plaintiffs in a data breach case have suffered legally compensable injury where they allege their data has been stolen by hackers, even if they have not yet suffered visible harms like identity theft or fraudulent charges.
Norfolk Southern Railway Company v. Winford Hartry et al.(S19C0008)
Norfolk Southern deals with whether a claim under the Federal Employers' Liability Act ("FELA"), which gives a railroad employee the right to sue his employer for injury caused by the company's negligence, is precluded by regulations under the Federal Railroad Safety Act ("FRSA") which cover the subject of the plaintiff's negligence claim.
In June 2010, the plaintiff was driving a train for Norfolk Southern Railway ("NS") when his train collided with a truck driven by Johnson (one of the defendant's below). For about a day leading up to the crash, the crossing gates were down, normally indicating that a train is approaching, at the public railway crossing. Witnesses reported that leading up to the crash drivers approaching the crossing had assumed the crossing gates were simply malfunctioning, and simply drove around them.
The plaintiff sued NS under FELA alleging their negligence caused the crossing gates to malfunction, which resulting in conduct like Johnson's and depriving the plaintiff of a reasonably safe place to work. NS successfully argued in the trial court that the plaintiff's FELA claims were precluded by regulations under the FRSA dealing specifically with the issue of malfunctioning crossing gates.
In Hartry v. Ron Johnson Jr. Enterprises, Inc., 347 Ga. App. 55 (2018), the Court of Appeals reversed, holding that the relevant FRSA regulations prescribed only minimum standards for dangerous conditions like malfunctioning crossing warning systems: "[t]he plain language of the regulation directs . . . a minimum requirement . . . It does not limit railway liability to its employee in the event that a railway was or should have been aware of a malfunction, which is what Hartry claims occurred in this case." Id. at 63. the Court of appeals acknowledged that many state and federal courts had deemed such FELA claims to be precluded, including Georgia precedent, but pointed out that since the United States' Supreme Court announced its two part preclusion test in POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (2014), many courts had altered course to hold FELA claims were not precluded by FRSA regulations. See, e.g. Norfolk Southern Ry. Co. v. Zeagler, 293 Ga. 582 (2013) (holding that FELA failure-to-train claims were not preempted by FRSA regulations requiring filing of operating rules with the FRA, but declining to specify the standard for conflict preclusion cases). The Court of Appeals rejected NS's arguments that under the FRSA regulations a railroad is not negligent in failing to fix a "false activation" of a crossing gate unless it has actual knowledge of the problem.
The question presented in the order granting certification is "Whether Hardy's claims under the Federal Employers' Liability Act, 45 U.S.C. 51 et seq., were precluded by a regulation under the Federal Railroad Safety Act, 49 U.S.C. 20101 et seq.?"
The case is set for the August 2019 Oral Argument Calendar.
Note: Three justices dissented from granting the cert petition in Norfolk Southern, including Justices Blackwell, Peterson, and Ellington.
Order Granting Cert: https://www.gasupreme.us/wp-content/uploads/2019/04/s19c0008.pdf
Collins et al. v. Athens Orthopedic Clinic
In Collins, a group of clinic patients brought a class action suit alleging negligence and related claims arising out of the data breach of the clinic's computer systems by a hacker known as the "Dark Overlord." The plaintiffs alleged "[a]s a direct and proximate result of [AOC's] negligence, Plaintiffs and other class members have suffered, or will suffer, damages, including the cost of identity theft protection and/or credit monitoring services and the costs associated with placing and maintaining a credit freeze on their accounts." See Collins v. Athens Orthopedic Clinic, 347 Ga. App. 13, 15 (2018). The trial court granted Athens Orthopedic Clinic (AOC)'s motion to dismiss without identifying the specific basis for the dismissal.
The Court of Appeals affirmed the dismissal, explaining that "[w]hile we have never addressed directly whether prophylactic costs anticipated or incurred to protect oneself against the threat of identity theft following a data breach constitute "loss or damage," in prior cases the Court had said that harm relating to wrongful disclosure of sensitive information was "too speculative to form the basis of recovery." See id. (citations omitted). Further, in toxic tort cases the Court had held that an "increased risk of cancer" and the need for "monitoring [for the development of adverse health consequences] in the future," were insufficient to state a cognizable claim under Georgia law. Thus "as in the context of medical monitoring in toxic tort cases, prophylactic measures such as credit monitoring and identity theft protection and their associated costs" are not "compensable injury" sufficient to support a negligence claim.
The Supreme Court granted cert, asking the parties to address "[d]id the Court of Appeals err in affirming the dismissal of the complaint on the ground that plaintiffs alleged a legally compensable injury?"
Judge McFadden dissented in part, arguing the majority opinion should not have pretermitted standing and simply dismissed for failure to state a claim. Judge McFadden would have reversed the trial court's undifferentiated dismissal on a finding that the plaintiff's did have standing, and remanded the case for further proceedings.
Note: Four justices dissented from granting the cert petition in Collins, including Justices Blackwell, Boggs, Peterson, and Ellington.
Order Granting Cert: https://www.gasupreme.us/wp-content/uploads/2019/04/s19c0007.pdf
Denied Petitions
S18C1620. IN RE ESTATE OF ROBERT ELLSWORTH JONES, JR. (A18A0783)
S18C1647. MCDONALD v. STEWART (A18A0304)
S19C0053. STANFORD et al. v. CITY OF ALBANY (A18A0699)
S19C0131. GRIFFIN v. CITY OF MILLEDGEVILLE (A18A1319)
S19C0148. YOUNG v. THE STATE (A19D0046)
S19C0159. COLE v. JASPER COUNTY BOARD OF COMMISSIONERS (A19D0030)
S19C0178. SMITH v. PEARCE (A19D0051)
S19C0188. ROBERTS v. THE STATE (A18A1835)
S19C0189. AUSTIN v. THE STATE (A18A1231)
S19C0192. WILLIAMS v. THE STATE (A18A0899)
S19C0202. SILVER COMET TERMINAL PARTNERS, LLC v. RTA STRATEGY, LLC et al. (A18A1026)
S19C0203. SILVER COMET TERMINAL PARTNER, LLC v. CHIP LAKE et al. (A18A1027)
S19C0207. ROLLINS v. ROLLINS (A18D0452)
S19C0212. JOHNSON v. WILCOX STATE PRISON et al. (A18A2093)
S19C0219. CORBETT v. ROLLINS (A18D0453)
S19C0237. FLINT TIMBER, LP v. AGSOUTH FARM CREDIT ACA (A18A0916)
S19C0845. ROBERTS v. THE STATE (A19A1047)
S19C0856. ROBERTS v. THE STATE (A18A1834)
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