Employers Not Required to Have Defibrillators or CPR-Ready Personnel to Prevent Death, Florida Court Rules

On August 14, 2006, Larry Sells was working with Richard Wells, a CSX engineer, on a road switching” job in rural Clay County. After stopping the locomotive, Sells got out to operate a switch. He had a heart attack. Wells had been in the locomotive. He realized something had gone wrong two or three minutes after last seeing Sells. He radioed a dispatcher on the railroad’s emergency channel.

Sells had no pulse and was not breathing. Wells tried chest compressions, but that didn’t help. Meanwhile there was confusion at the dispatcher’s end as to where the incident was unfolding. It is CSX policy to prohibit employees from using cell phones on the job, though cell phones can also act as location devices. (Wells eventually turned on his phone and immediately got a call from CSX employees, helping them to his location. But EMTs arrived later.)

“Because of the dispatcher’s inability to communicate Sells’ exact location,” a court decision noted, “the EMTs’ arrival was delayed by thirteen to fifteen minutes. In total, it took the EMTs approximately thirty-five minutes to reach Sells, at which point there was nothing they could do to save his life.”

Sells’s widow Crystal Sells sued CSX under the Federal Employers Liability Act (FELA), charging that CSX was responsible for providing a reasonably safe workplace that it breached that duty by failing to take reasonable measures to ensure that Sells received prompt, timely, and adequate medical attention, by failing to provide reasonably safe equipment–CSX trains had no defibrillators–and failing to train workers in CPR or reaching EMTs in a timely manner.

Sells won a verdict at trial, but it was far from an outright victory. Rather, it was a “comparative negligence finding,” which barely gave Sells an edge in the verdict. In essence, the jury also found Sells to have been 45 percent “comparatively negligent.” Sells had had some heart issues before taking the job with CSX. In 2005, when he was living in New York City, according to a brief filed by CSX, two EKGs he’d had showed some abnormality, and he’d told a cardiologist that he “had intermittent chest pain that comes and goes without any clear precipitant.” He then moved to Florida and took a job with CSX. In his job questionnaire he was asked whether he’d experienced “heart, vein or artery trouble” or “chest pain,” and answered no to both. CSX asserted that the company hired him without knowing about his heart trouble.

---

A 35-minute delay in EMTs’ response is found not to have contributed to an employee’s death.

---

Sells’s widow asked the trial court to set aside the comparative negligence finding. CSX asked for the whole verdict to be set aside, in favor of a “directed verdict.” The trail court granted CSX’s motion, agreeing that the company had no duty to take action in anticipation that Sells might suffer a heart attack. The court also found that there was no evidence from which a jury could reasonably conclude that CSX’s timing in its response to the incident either caused or contributed to his death. It’s not that CSX claimed it had no duty to provide medical attention promptly, but that its failure to do so ion this case was not a cause of death.

Sells’s widow appealed.

On Monday, the First District Court of Appeal reversed the judgment and found in favor of CSX.

“An employer is not required to take preventive actions in anticipation of an employee falling ill or becoming injured,” appeals-court Judge Lori Rowe wrote for a majority joined by Chief Judge Joseph Lewis Jr. ” Thus, long-standing case law establishes that while CSX had to procure prompt emergency medical treatment for Sells once it knew that he was seriously ill, it did not have a duty to take anticipatory measures to prevent such emergency situations.”

No cases specifically address whether a railroad is required to provide defibrillators or train employees in CPR. But Florida courts, the judge ruled, “have previously addressed this issue in the context of the duty owed by a property owner to an invitee and the duty owed by a school to its student under the common law.” That case law does not make the absence of either defibrillators or an individual’s lack of CPR capabilities causes for negligence. Summoning medical help within reasonable time is enough to meet the legal requirements, the court found. A precedent “declined to extend the property owner’s duty to include providing medical care or medical rescue services, such as performing CPR or administering an AED,” that is, an automated external defibrillator.

Judge Ronald Swanson dissented.

“Put simply, there is no long-standing case law directing that an employer does not have a duty to anticipate medical emergencies or prepare for them,” Swanson wrote. “Indeed, this conclusion flies in the face of federal and state safety statutes, and is in conflict with countless cases in which courts have considered an employer’s duty to provide a reasonably safe workplace, which necessarily requires anticipation of the types of injuries that could occur, and how they can be avoided. […] There is competent, substantial evidence in the record from which the jury could have found CSX liable for its failure to provide an AED and CPR to Mr. Sells under the facts of this case.”

The full decision and dissent are below.

Sells vs. CSX, 1st District Court of Appeal (2015)