CRYSTAL SELLS, as Personal 

Representative of THE ESTATE 

OF LARRY SELLS, deceased,

Appellant,

v.

CSX TRANSPORTATION, INC.,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D13-4775

_____________________________/

Opinion filed May 4, 2015.

An appeal from the Circuit Court for Duval County.

Waddell A. Wallace, Judge.

John S. Mills and Andrew D. Manko, The Mills Law Firm, P.A., Tallahassee, for 

Appellant.

Andrew J. Knight, II of Moseley Prichard Parrish Knight & Jones, Jacksonville, 

and Richard Caldarone, Pro Hac Vice, Mayer Brown LLP, Washington, D.C., for 

Appellee.

Peter D. Webster of Carlton Fields Jorden Burt, P.A., Tallahassee, Wendy F. 

Lumish of Carlton Fields Jorden Burt, P.A., Miami, and Daniel Saphire, Assistant 

General Counsel, Washington, D.C., for Amicus Curiae Association of American 

Railroads.

ROWE, J.
Appellant, Crystal Sells, as a personal representative of her husband’s estate, 

challenges the trial court’s order granting Appellee’s, CSX Transportation, Inc.’s

(“CSX’s”), motion to set aside the jury’s verdict and denying her motion to set 

aside the jury’s finding of comparative negligence. We affirm the trial court’s 

entry of directed verdict for three reasons. First, Appellant failed to establish that 

CSX had a duty to take preventative measures to guard against an employee 

suffering from cardiac arrest. Second, Appellant failed to establish that CSX’s 

failure to procure prompt medical assistance contributed in any way to the 

employee’s death. Third, although CSX, through its employees, has a duty to 

render basic first aid to seriously ill or injured employees, this duty does not 

require CSX to compel its employees to administer medical care in the form of 

life-saving techniques that require training and/or certification. 

I. Facts

In August 2006, Larry Sells was working as a conductor and Dick Wells was 

working as an engineer for CSX. They were conducting switch operations, which 

required Sells to exit the train and manually operate a switch to change tracks, in a 

rural area of Clay County, Florida. After he exited the train, Sells suffered cardiac 

arrest. Wells discovered Sells about two minutes after the attack. Pursuant to 

company policy and in compliance with federal regulations prohibiting employees 

from using cell phones while operating a train, Wells contacted CSX’s dispatcher 

2
via the train’s radio system. Because of the dispatcher’s inability to communicate 

Sells’ exact location, 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.

Appellant sued CSX under the Federal Employers Liability Act (“FELA”),

alleging that CSX’s negligence caused Sells’ death. She alleged that CSX owed a 

duty to provide Sells with a reasonably safe workplace and 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, in that CSX failed to equip its trains with automated external 

defibrillators (“AEDs”); by failing to train Sells’ co-workers in cardiopulmonary 

resuscitation (“CPR”); and by failing to timely call for emergency personnel after

Sells collapsed. 

The case proceeded to trial and the jury returned a verdict in favor of 

Appellant, finding that CSX was negligent and that Sells was 45% comparatively 

negligent. Both parties filed post-trial motions. Appellant asked the trial court to 

set aside the jury’s comparative negligence finding. CSX asked the trial court to 

set aside the verdict and enter judgment in accordance with its motion for directed 

verdict made at trial. The trial court granted CSX’s motion and set aside the 

verdict. The trial court concluded as a matter of law that CSX had no duty to take 

3
actions in anticipation of the possibility that Sells might suffer cardiac arrest and 

that Appellant failed to provide any evidence from which a jury could reasonably

conclude that CSX’s response to Sells’ cardiac arrest caused or contributed to his 

death.1

 This appeal follows.

II. Motion for Directed Verdict

Appellant argues that the trial court erred in granting the motion for directed 

verdict for two reasons.2

 First, Appellant argues that the trial court erred in finding 

that CSX had no duty to take preventive actions in anticipation of one of its 

employees suffering cardiac arrest. Second, Appellant argues that the trial court 

erred in finding that there was no evidence from which a reasonable jury could 

conclude that CSX’s response to the emergency caused or contributed to Sells’ 

death. Both of these arguments flow from a railroad’s duty to provide the 

employee with a reasonably safe workplace. See Lynch v. Ne. Reg’l Commuter 

R.R. Corp., 836 F.Supp. 2d 620 (N.D. Ill. 2011); Foreman v. Seaboard Coast Line 

1

 Contrary to the assertion in the dissent, the trial court never concluded that CSX 

did not have a duty to provide prompt medical treatment to Sells. The court found 

that Appellant failed to prove causation on this issue.

2 A trial court’s order directing a verdict is reviewed de novo. Williams v. 

Washington, 120 So. 3d 1263, 1264 (Fla. 1st DCA 2013). A directed verdict will 

be affirmed only when no reasonable view of the evidence could sustain a verdict 

in favor of the non-moving party. Id. 

4

 
R.R. Co., 279 So. 2d 825, 827 (Fla. 1973); Randall v. Reading Co., 344 F. Supp. 

879 (M.D. Penn. 1972). 

With respect to providing compensation for workplace injuries, the 

obligations of railroads differ from those of the majority of other employers in the 

United States. The workers’ compensation laws that cover virtually all other 

industries provide compensation to injured employees on a no-fault basis. 

However, under FELA, being injured on the job does not automatically entitle an 

employee of a railroad to compensation; instead, compensation is awarded only if 

the employer’s negligence caused the injury, and compensation must be reduced to 

the extent of the employee’s own negligence. 45 U.S.C. §§ 51, 53. FELA 

provides, “Every common carrier by railroad . . . shall be liable in damages to any 

person suffering injury while he is employed by such carrier . . . for such injury or 

death resulting in whole or in part from the negligence of any of the officers, agent, 

or employees of such carriers . . . .” 45 U.S.C. § 51. In other words, under FELA, 

a railroad is responsible for its employees’ injuries or death caused in whole or in 

part by the railroad’s negligence. CSX Transp., Inc. v. McBride, 131 S.Ct. 2630, 

2634 (2011). To establish a claim under FELA, the plaintiff must prove duty, 

breach of duty, foreseeability, and causation. Fulk v. Ill. Cent. R.R., 22 F.3d 120, 

124 (7th Cir. 1994); Moody v. Boston & Marine Corp., 921 F.2d 1, 3 (1st Cir. 

1990). More specifically, to prove a claim that the railroad failed to provide an 

5
employee with a safe workplace, “the worker must establish that he became ill at 

work, that without prompt medical treatment he faced death or serious bodily 

harm, that the employer had notice of his illness, that the employer failed to furnish 

prompt medical attention, and that his death or injury resulted in whole or in part 

from the employer’s delay in response.” Pulley v. Norfolk S. Ry. Co., Inc., 821 

So. 2d 1008, 1014-15 (Ala. Civ. App. 2001). 

A. CSX’s Duty to Take Preventative Measures

First, we address whether CSX had a duty to make AEDs3 available to its 

employees, to train its employees to use AEDs, and/or to train its employees in 

CPR. The existence of a duty is a question of law that must be decided by the trial 

court, not the jury. Fulk, 22 F.3d at 125. As recently acknowledged by our 

supreme court, there are four sources of duty: “(1) statutes or regulations; (2) 

common law interpretations of those statutes or regulations; (3) other sources in 

the common law; and (4) the general facts of the case.” Limones v. Sch. Dist. of 

Lee County, 2015 WL 1472236, *2 (Fla. Apr. 2, 2015). The duty in this case 

arises from the common law. Under FELA, an employer has a duty to exercise 

reasonable care in providing a reasonably safe workplace, reasonably safe 

conditions in which to work, and reasonably safe tools and equipment. Beeber v. 

3 Appellant characterizes these devices as “simple” and easily “administered by 

anybody even without training.” However, the FDA classifies them as medical 

devices and now requires premarket approval of these devices. 21 C.F.R. § 

870.5310.

6

 
Norfolk S. Corp., 754 F.Supp 1364, 1368 (N.D. Ind. 1990). As part of the duty to 

provide a safe workplace, the employer is required to procure medical aid and 

assistance for an employee when, to the employer’s knowledge, the employee 

becomes seriously ill and unable to care for himself. S. Pac. Co. v. Hendricks, 339 

P.2d 731, 733 (Ariz. 1959); Szabo v. Penn. R.R. Co., 40 A.2d 562, 563 (N.J. 

1945). “[T]he duty arises out of strict necessity and urgent exigency. It arises with 

the emergency and expires with it.” Hendricks, 339 P.2d at 733 (citing Szabo, 40 

A.2d at 563); Randall, 344 F.Supp. at 884 (holding that whether the railroad had a 

duty to render emergency medical aid turned on whether the railroad knew or 

should have known that the employee had been seriously injured). An employer is 

not required to take preventive actions in anticipation of an employee falling ill or 

becoming injured. Wilke v. Chicago Great W. Ry. Co., 251 N.W. 11, 13 (Minn. 

1933) (holding that an employer is not required to anticipate that the physical 

health and ability of an employee to care for himself while performing his work 

duties would suddenly cease). 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. Szabo, 40 A.2d at 563; Wilke, 251 N.W. at 13.

FELA “does not make the employer the insurer of the safety of his employees 

while they are on duty.” Ellis v. Union Pac. R.R. Co., 329 U.S. 649, 653 (1947).

7
While there are no cases specifically addressing whether, pursuant to FELA, 

a railroad is required to provide AEDs or to train its employees to administer CPR 

or AEDs, Florida courts 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.

4 See L.A. Fitness Intern, LLC v. Mayer, 980 So. 

2d 550, 558 (Fla. 4th DCA 2008); Limones, 2015 WL at *4. In L.A. Fitness, the 

Fourth District concluded that a business owner satisfied the legal duty to aid a 

patron experiencing a medical emergency by summoning medical assistance within 

a reasonable time. Id. at 558. The appellant argued that the fitness center was 

negligent for failing to administer CPR, failing to have an AED on its premises and 

to use it on the deceased, and failing to properly train its employees in the handling 

of medical emergencies. Id. at 552. The Fourth District 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. Id. The court also 

held that there was no common law duty that required a business to have an AED 

on its premises. Id. at 561. 

4 FELA is founded on common-law concepts of negligence, except to the extent 

that it has been modified by the removal of several common-law defenses to 

liability and by a relaxed standard of causation. Consol. Rail Corp. v. Gottshall, 

512 U.S. 532, 543-44 (1994); McBride, 131 S.Ct. at 2636. Consequently, common 

law principles of duty are entitled to great weight in our analysis of this issue. 

Gottshall, 512 U.S. at 544.

8

 
In Limones, the supreme court held that it was for the jury to decide whether 

the school breached its duty to supervise its students when it failed to administer an 

AED on a student after he collapsed during a high school soccer game. 2015 WL 

at *4. The supreme court based its decision on the fact that there is a special 

relationship between schools and their students due to the mandatory education of 

children and the fact that schools stand in the place of parents during the school 

day and school-sponsored activities. Id. at *3. This special relationship imposes a 

duty on teachers and other school employees to reasonably supervise students 

during all school-sponsored activities. Id. Florida courts have recognized several 

specific duties to student athletes, including the duty “to take appropriate measures 

after a student is injured to prevent aggravation of the injury.” Id. at *4. The court 

concluded that it was for the jury to determine whether the school’s employees 

breached this duty under the particular facts of this case. Id. 

The supreme court distinguished their holding from the Fourth District’s 

holding in L.A. Fitness that a health club’s duty to an adult customer was limited to 

reasonably summoning emergency responders for a customer in cardiac distress. 

Id. at *5. The court recognized that the relationship between an adult customer and 

a health club was far different from the relationship between a student and school 

board officials. Id. at 5. “Despite the fact that business proprietor-customer and 

school district-student relationships are both recognized as relationships, these 

9
relationships are markedly different. We initially note that the proprietor-customer 

relationship most frequently involves two adult parties, whereas the school-student 

relationship usually involves a minor. Furthermore, the business invitee freely 

enters into a commercial relationship with the proprietor.” Id. The same 

distinction applies to this case. The relationship between an employer and an 

employee is more similar to the relationship between a business and a customer 

than it is to the relationship between a school and a student. This case does not 

involve a jury question because, as in L.A. Fitness, CSX’s duty was limited to 

summoning medical assistance once it learned that its employee was injured.

The dissent attempts to distinguish the business-invitees cases by noting that 

all of the businesses were “readily accessible by EMTs, as they were located in 

populated areas.” However, accessibility has never been a factor considered when 

examining the duty to provide a reasonably safe workplace. See De Zon v. 

American President Lines, Ltd., 318 U.S. 660 (1943). In De Zon, the Supreme 

Court held that a ship owner had no duty to “carry a physician” on the ship, even 

though the ship owner was required to take reasonable measures to transport an ill 

or injured seaman to a physician. Id. at 668. The supreme court’s conclusion that 

a ship that was scheduled for a sixty-day voyage was not required to carry a doctor 

onboard would be illogical if accessibility to medical care was to be considered 

when examining the duty to provide a reasonably safe workplace. See also, Olsen 

10
v. Am. S.S. Co., 176 F.3d 891, 895 (6th Cir. 1999); Carleno v. Marine Trans. 

Lines, Inc., 317 F.2d 662, 665 (4th Cir. 1963).

Because CSX’s duty to provide medical assistance arose only when the 

emergency occurred, the trial court properly determined that CSX had no duty to 

take preventative measures in anticipation of an employee suffering cardiac arrest.5

 

Randall, 344 F.Supp. at 884. It is axiomatic that if CSX did not have a duty to take 

preventative measures, then CSX did not have a duty to provide AEDs nor to train 

its employees in the administration of AEDs or CPR. Thus, we affirm the trial 

court’s grant of the motion for directed verdict on this issue. 

B. CSX’s Duty Once an Emergency Arises

Second, we address Appellant’s argument that she presented evidence from 

which a reasonable jury could conclude that CSX breached its duty to provide 

prompt emergency medical treatment to Sells. Appellant argues that CSX 

breached this duty in two respects: (1) CSX failed to promptly summon medical 

assistance once it learned of Sells’ condition; (2) CSX failed to render medical care 

to Sells before the EMTs arrived. We agree that CSX failed to promptly summon 

medical treatment; however, Appellant is unable to establish a causal link between 

5 We also note that imposing a duty on railroads to provide AEDs or CPR training 

would necessarily require railroads to provide equipment and training to deal with 

a wide range of medical conditions, including diabetes, severe allergies, and 

epilepsy. This would be contrary to the principle that FELA does not make 

railroads the insurer of the safety of its employees. Gottshall, 512 U.S. at 543.

11

 
this failure and Sells’ death. And although CSX was required to provide Sells with 

basic first aid while awaiting the arrival of the EMTs, we hold that CSX was under 

no duty to render medical care during that time. 

1. Duty to Summon Medical Assistance

Appellant argues that CSX breached its duty to promptly summon medical 

assistance when it was unable to convey directions to the EMTs as to Sells’ 

location and by its delay in calling 911, which resulted in the EMTs’ failure to 

reach Sells until thirty-five minutes after he went into cardiac arrest. The trial 

court concluded, and we agree, that Appellant presented no evidence to establish 

that CSX’s delay in summoning medical assistance caused Sells’ death. In order to 

create a jury issue on the question of causation in a FELA case, the plaintiff must 

present evidence that the railroad’s negligence “‘played any part, even the 

slightest, in producing the injury or death for which damages are sought.’” 

Randall, 344 F.Supp. at 883 (M.D. Penn. 1972) (quoting Rogers v. Mo. P.R. Co., 

352 U.S. 500, 506 (1957)). While the evidence may be minimal, it must provide 

the jury with a rational basis for concluding that the railroad’s negligence 

contributed to the injury or death. Id. 

The uncontroverted trial testimony established that, absent any delays, the 

EMTs could not have arrived on scene until fifteen minutes after Sells went into 

cardiac arrest. As conceded by counsel at oral argument, the medical testimony 

12
conclusively demonstrated that the administration of emergency medical treatment 

at that point in time, without more, could not have prevented Sells’ death. The 

dissent argues that no medical expert testified that Sells “had no chance of 

survival” even if the EMTs’ arrival had not been delayed. This argument not only 

ignores counsel’s repeated concessions to contrary, but it also ignores the medical 

testimony presented below. Sells’ family practitioner testified that Sells would 

have been brain dead after ten minutes due to the lack of professional medical 

intervention. Appellant’s medical expert testified that brain death begins after four 

or five minutes, and he testified, within a reasonable degree of medical certainty, 

that Sells would have been brain dead fifteen minutes after he went into cardiac 

arrest. He testified, “if Mr. Sells did not get effective CPR and if there was no 

AED, the great likelihood after 15 minutes is that he would not be able to be 

resuscitated in a way that would get him back to any kind of reasonable existence.” 

Finally, the defense’s expert witness testified that Sells’ chances of survival after 

ten minutes without the provision of trained medical assistance was minimal. Here, 

even when the evidence is viewed in a light most favorable to Appellant, the 

evidence established that absent medical intervention, there was no possibility, 

even under perfect circumstances, of emergency medical help arriving in time to 

save Sells; therefore, Appellant is unable to demonstrate that any alleged breach 

13
was causally related to Sells’ death.6 See Borda v. E. Coast Ent., Inc., 950 So. 2d 

488, 490 (Fla. 4th DCA 2007) (quoting Little v. Publix Supermarkets, Inc., 234 So. 

2d 132, 133 (Fla. 4th DCA 1970) (holding that a motion for directed verdict should 

be granted when “‘the evidence is of such a nature that under no view which the 

jury might lawfully take of it, favorable to the adverse party, could a verdict for the 

latter be upheld.’”). 

This same reasoning applies to Appellant’s argument that CSX should have 

permitted its employees to directly call 911, instead of radioing dispatch, in the 

event of an emergency. Even if Wells had directly called 911 after discovering 

Sells, the EMTs would not have arrived in time to save Sells.7

 Thus, even under 

6

 This case is distinguishable from the decision in Bridgeman v. Terminal Railroad 

Association of St. Louis, 552 N.E.2d 1146 (Ill. App. Ct. 1990). In Bridgeman, the 

employee died as a result of acute myocardial infarction. Id. at 1148. The autopsy 

revealed that the employee was alive for a minimum of thirty minutes from the 

onset of the attack until death, but medical help was not summoned until forty-five 

minutes after the employee was discovered. Id. Importantly, the evidence 

established that the closest ambulance was approximately eight blocks away from 

the employee’s location and that a trauma center was approximately one minute 

away. Id. at 1147. Based on these facts, the Illinois Appellate Court concluded 

that the evidence was sufficient to sustain the jury’s conclusion that the railroad 

was at least partially liable for the employee’s death. Here, the evidence 

established that it would have taken an ambulance at least fifteen minutes to reach 

Sells’ location and that Sells would not have survived longer than ten minutes 

without medical intervention. Thus, Bridgeman is factually distinguishable from 

this case because there was no evidence in the current case that CSX could have 

summoned medical help in time to save Sells’ life.

7 Appellant’s argument also ignores the fact that, in addition to CSX’s policy 

prohibiting their use, there is a federal regulation requiring railroad employees to 

14

 
the relaxed standard of causation applicable to FELA cases, Appellant failed to 

establish under these facts that CSX’s alleged breach of its duty to render prompt 

medical care caused or contributed to Sells’ death. See Crowther v. Consol. Rail 

Corp., 763 F.Supp. 2d 262, 265 (D. Mass. 2011) (holding that a FELA plaintiff 

must show not only that the railroad was negligent, but also that the railroad’s 

negligence caused or contributed to his injuries).

2. Duty to Render First Aid, Not Medical Care

Appellant argues that CSX’s failure to allow Wells to speak directly with a 

911 operator contributed to Sells’ death because the 911 operator would have been 

able to instruct Wells on how to perform CPR on Sells, which would have 

extended Sells’ life until the EMTs arrived. She contends that a reasonable jury 

could have found from the evidence presented that this failure was a breach of 

CSX’s duty to provide a reasonably safe workplace. We disagree with the 

contention that the reasonableness of care exercised by CSX was a question of fact 

that precluded the entry of the directed verdict. Even if the jury made such a 

finding, the law does not require CSX to provide all emergency medical care that 

its employees might foreseeably require. See Lundy v. Adamar of New Jersey, 

Inc., 34 F.3d 1173, 1179 (3d Cir. 1994).

turn off all personal electronic devices when on a moving train, when any member 

of the crew is on the ground or riding rolling equipment during a switch operation, 

or when any railroad employee is assisting in preparation of the train for 

movement. 49 C.F.R. § 220.305. 

15

 
Here, we are required to examine whether a railroad’s duty to provide 

prompt medical care encompasses a duty for employers to require their employees 

to perform CPR under the instruction of 911 operators. Appellant does not cite,

nor can we find, any cases addressing this issue in the context of FELA; thus, we 

look to the common law for guidance. See Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 

158, 165-66 (2007) (“Absent express language to the contrary, the elements of a 

FELA claim are determined by reference to the common law.”). As discussed 

above, the special relationship between the railroads and its employees gives rise to 

a special duty to take affirmative action to aid an injured employee. The 

Restatement (Second) of Torts describes a common carrier’s duty to aid its 

passengers, including employees, as follows:

(1) A common carrier is under a duty to its passengers to take 

reasonable action

(a) to protect them against unreasonable risk of physical harm, and

(b) to give them first aid after it knows or has reason to know that they 

are ill or injured, and to care for them until they can be cared for by 

others.

(2) An innkeeper is under a similar duty to his guests.

(3) A possessor of land who holds it open to the public is under a 

similar duty to members of the public who enter in response to his 

invitation.

(4) One who is required by law to take or who voluntarily takes the 

custody of another under circumstances such as to deprive the other of 

16
his normal opportunities for protection is under a similar duty to the 

other.

Restatement (Second) of Torts § 314A. The duty to take reasonable action is 

further discussed in the comments:

The defendant is not required to take any action until he knows or has 

reason to know that the plaintiff is endangered, or is ill or injured. He 

is not required to take any action beyond that which is reasonable 

under the circumstances. In the case of an ill or injured person, he will 

seldom be required to do more than give such first aid as he 

reasonably can, and take reasonable steps to turn the sick man over to 

a physician, or to those who will look after him and see that medical 

assistance is obtained. He is not required to give any aid to one who is 

in the hands of apparently competent persons who have taken charge

of him, or whose friends are present and apparently in a position to 

give him all necessary assistance.

Restatement (Second) of Torts § 314A, cmt. f. As applied to the current situation, 

this comment demonstrates that CSX’s duty was to summon medical assistance

when it learned of Sells’ condition and to take reasonable first aid measures until 

medical care arrived. See Abramson v. Ritz Carlton Hotel Co. LLC, 480 F.App’x 

158, 161 (3d Cir. 2012) (relying on comment f to conclude that an innkeeper must 

only summon medical care and take reasonable first aid measures until medical 

care arrives). “[T]he duty recognized in § 314A does not extend to providing all 

medical care that the carrier or innkeeper could reasonably foresee might be 

needed by a patron.” Lundy, 34 F.3d at 1179.

As observed by the Fourth District, the duty to provide first aid “does not 

encompass the duty to perform skilled treatments, such as CPR. ‘First aid requires 

17
no more assistance than that which can be provided by an untrained person.’” L.A. 

Fitness, 980 So. 2d at 559 (quoting Pacello v. Wyndam Int’l, 2006 WL 1102737, 

*6 (Conn. Super. 2006)). The Fourth District explained that, pursuant to the 

American Red Cross and the American Heart Association’s Guidelines for First 

Aid, common first aid treatments include, but are not limited to, calling for help, 

positioning a victim, ensuring that a seizure victim has an open airway, controlling 

a victim’s bleeding by applying pressure, applying cold packs to soft-tissue 

injuries, warming a victim of hypothermia, and removing a drowning victim from 

the water. Id. While acknowledging that CPR is a commonly known technique, 

the Fourth District concluded that non-medical employees should not be required 

to perform it:

Although the procedure for CPR is relatively simple and widely 

known as a major technique for saving lives, it nonetheless requires 

training and re-certification. Unlike first responders, for whom 

performing CPR is routine, non-medical employees certified in CPR 

remain laymen and should have discretion in deciding when to utilize 

the procedure. 

Id.; see also Abramson, 480 F.App’x at 162 (clarifying that “a common 

understanding of ‘first aid’ does not encompass the use of an oxygen tank or AED . 

. . . Rather, ‘first aid’ involves simple procedures that can be performed with 

minimal equipment and training, such as bandaging and repositioning. CPR . . . 

lies at the outer limit of the term.”); Salte v. YMCA of Metro. Chi. Found., 814 

N.E. 2d 610, 615 (2004) (concluding that the use of a defibrillator was “far beyond 

18
the type of ‘first aid’ contemplated by” § 314A); Lee v. GNLV Corp., 22 P.3d 209, 

213-14 (2001) (holding that the duty to take reasonable steps to render first aid did 

not include performing the “Heimlich maneuver” on a restaurant patron who was 

choking). Accordingly, while CSX may have been obligated to provide general 

first aid to Sells, even that obligation would not include the duty to require its 

employees to perform skilled treatment, such as CPR, on an injured co-worker.8

 

Finally, it would be a radical departure from the common law to require 

employers to ensure that their employees are available, capable, and willing to 

perform CPR on an injured co-employee while under the instruction of a 911 

operator. In fact, “when an employer actually undertakes to furnish aid or 

assistance to an ill employee, he must exercise reasonable care in rendering such 

aid and assistance.” Hendricks, 339 P.2d at 733; Wilke, 251 N.W. at 94 (holding 

that if an employer attempts to care for a sick or injured employee, the employer is 

liable for the failure to do so without due diligence). Thus, if an employee 

attempts to respond to a medical emergency but does so inadequately, the 

employer and the employee may be subject to a claim for having negligently 

rendered emergency medical services. See L.A. Fitness, 980 So. 2d at 560 

8 Imposing a duty on employers to require its employees to render medical 

treatment implicates complex labor and collective bargaining issues. This is 

especially true as there is no law requiring railroads to train its employees in lifesaving measures, and there is no mechanism in place to indemnify and hold 

harmless those employees that do attempt to render medical care.

19

 
(“Florida law requires that an action undertaken for the benefit of another, even 

gratuitously, be performed in accordance with an obligation to exercise reasonable 

care.”); Purino v. Buffalo Athletic Club, 598 N.Y.S.2d 648 (N.Y. App. Div.), aff’d, 

624 N.E.2d 676 (N.Y. 1993) (personal representative of individual who suffered a 

fatal heart attack at an athletic club sued, alleging that the club’s employees 

negligently rendered emergency treatment). Consequently, we hold that CSX did 

not have a duty to require its employees to perform CPR on another employee 

under the direction of a 911 operator.

9

III. Conclusion

For the foregoing reasons, we affirm the trial court’s grant of CSX’s motion 

for directed verdict because Appellant failed to establish that CSX had a legal duty 

to train its employees in the use of CPR and AEDs or to provide its employees 

with AEDs, and Appellant failed to establish that any alleged breach of CSX’s 

duty to provide prompt medical attention contributed, in whole or in part, to Sells’ 

death. Because we affirm the trial court’s grant of the motion for directed verdict, 

we need not address Appellant’s argument that the trial court erred in denying her 

motion to set aside the jury’s finding of comparative negligence. 

AFFIRMED.

9 This opinion should not be read as an attempt to discourage employees who have 

proper training or who feel comfortable performing CPR from assisting a fellow 

employee in an emergency situation. 

20

 
LEWIS, C.J., CONCURS; SWANSON, J., DISSENTS WITH OPINION.

21
SWANSON, J., dissenting.

I respectfully dissent. In my view, CSX owed Mr. Sells a duty to act with 

reasonable care under the circumstances, and competent substantial evidence 

supports the jury’s verdict that CSX breached that duty of care. Therefore, I would 

reverse the trial court’s post-verdict order granting the motion for directed verdict. 

Having so decided, I must also address the second point raised by appellant and not 

addressed by the majority, that being whether the trial court erred by allowing the 

jury to consider whether Mr. Sells was comparatively at fault. On that point, for 

the reasons expressed below, I would affirm. 

I. Facts

Before he moved to Florida, Mr. Sells lived in New York with his family. 

Just prior to the move, Mr. Sells learned from his general practitioner that an 

electrocardiogram (“EKG”) indicated a possible abnormality with the functioning 

of his heart. The practitioner referred Mr. Sells to a local cardiologist. During the 

examination, Mr. Sells told the cardiologist he was having intermittent chest pains. 

The cardiologist had Mr. Sells undergo another EKG and it, too, indicated a 

possible abnormality. As Mr. Sells was in the process of moving to Florida, the 

cardiologist instructed him to follow up with a Florida cardiologist. Mr. Sells 

failed to do so. 

Approximately six months after moving to Florida, Mr. Sells began working 

22
for CSX as a train conductor. As part of the employment process, he completed a 

medical questionnaire which asked if he had ever had any heart “trouble” or chest 

pains. Mr. Sells checked “no” to these questions. 

On August 14, 2006, Mr. Sells was at work along with Mr. Charles Wells, a 

CSX train engineer. They were the only employees working at the job site which, 

although in a remote location in Green Cove Springs, Florida, was one where 

employees worked “possibly daily.” While Mr. Wells was inside the train, Mr. 

Sells was outside throwing a switch on the track. Mr. Wells waited to hear the 

noise indicating the switch had been thrown, but after a couple of minutes, when 

he heard nothing, he looked out the window and saw Mr. Sells lying face up on the 

ground. He did not immediately go to help Mr. Sells. Instead, pursuant to CSX 

instructions concerning handling an emergency, he used the fixed train radio to call 

the CSX dispatcher located in the CSX operations center in Jacksonville to alert 

him of the situation and to provide him with Mr. Sells’ location. Mr. Wells had his 

personal cell phone with him, but due to a CSX policy requiring contact with only 

CSX during an emergency, he did not use it to call 911. Mr. Wells replaced the 

fixed radio and then went outside to Mr. Sells. He attempted to perform 

cardiopulmonary resuscitation (“CPR”) on Mr. Sells, but, because he was not 

trained in the technique, he only mimicked it as he had seen it done on television. 

As a result, he did not correctly perform CPR. Further, there was no automated 

23
external defibrillator (“AED”) available.

Meanwhile, the CSX dispatcher called 911. The CSX dispatcher was 

confused about the train’s location and had difficulty providing it to the 911 

operator. He contacted other CSX employees to assist him with trying to locate 

Mr. Sells. Because he could not identify the location, he had two different 911 

operators on the line at once. At some point, Mr. Wells retrieved his cell phone 

and turned it on. It immediately rang with a call from a CSX employee asking for 

directions to Mr. Sells’ location, which Mr. Wells provided. Several CSX 

employees arrived via their own vehicles, but they did not attempt to treat Mr. 

Sells or transport him to a medical facility for treatment; they only placed a 

windbreaker over his face because the sun was shining in his eyes. Following a 

delay of approximately thirty-five minutes after Mr. Wells found Mr. Sells on the 

ground, the emergency medical team (“EMT”) arrived. They declared Mr. Sells 

dead after a couple of minutes of assessing him. The autopsy report revealed that 

when Mr. Sells died, he had some blockage of his heart valves but did not suffer a 

myocardial infarction.

Appellant filed a complaint asserting that, under the Federal Employers 

Liability Act (“FELA”), CSX acted negligently because it had a duty of care to 

provide a reasonably safe workplace and it breached that duty by failing to ensure 

Mr. Sells received prompt, timely, and adequate medical attention. Specifically, 

24
she alleged the workplace was not safe because CSX had failed to provide an AED 

and ensure that co-workers were trained in CPR. She further asserted that CSX 

had acted negligently in causing a delay in the EMT’s timely reaching Mr. Sells 

following his collapse, thus thwarting prompt medical treatment. 

The case proceeded to trial and the jury returned a verdict in appellant’s 

favor, finding that CSX had acted negligently,10 but further finding that Mr. Sells 

was forty-five percent comparatively negligent. Post-verdict, both parties filed 

motions. CSX asked the court to set aside the jury’s verdict and enter judgment in 

accordance with the motion for directed verdict made at trial. Appellant sought to 

set aside the jury’s finding of comparative negligence. The trial court granted 

CSX’s motion. It found that while CSX had a duty to provide a reasonably safe 

workplace, it did not have a duty to anticipate that Mr. Sells might suffer cardiac 

arrest, because a railroad’s duty to provide medical care to its employees arises 

with the illness or injury and expires with it. Thus, the court concluded CSX did 

not have a duty to take preventive actions by providing AEDs or employees trained 

in CPR to Mr. Sells upon his collapse. More to the point, the trial court concluded 

CSX did not have a duty to provide prompt medical treatment to Mr. Sells because 

there was no evidence presented which indicated that any delays caused by CSX in 

10 The jury verdict form contained one question regarding CSX’s negligence. It 

stated: “Was there negligence on the part of the Defendant CSX that was a legal 

cause of the death of Larry Sells?” The jury marked, “YES.” 

25

 
directing the EMT to Mr. Sells caused his death. It concluded that Mr. Sells would 

have died even if the EMT had been promptly summoned and had timely arrived 

on the scene. This pronouncement by the trial court, as ratified by the majority 

opinion, is simply not supported by the record of the trial.

II. Discussion

A. Post-Verdict Motion for Directed Verdict

I first note that the majority fails to fully discuss and analyze the fact that 

this appeal concerns the lower court’s grant of a post-verdict motion for directed 

verdict—a crucial consideration in the analysis of this appeal.

The standard of review of an order granting a motion for a directed verdict is 

de novo. See Williams v. Washington, 120 So. 3d 1263, 1264 (Fla. 1st DCA 

2013). “In Florida, ‘[a]n appellate court . . . must view the evidence and all 

inferences of fact in the light most favorable to the nonmoving party, and can 

affirm a directed verdict only where no proper view of the evidence could sustain a 

verdict in favor of the nonmoving party.’” Sanders v. ERP Operating Ltd. P’ship, 

157 So. 3d 273, 280 (Fla. 2015) (quoting Friedrich v. Fetterman & Assocs., P.A., 

137 So. 3d 362, 365 (Fla. 2013)). “‘The power to direct a verdict should be 

exercised with caution, and it should never be granted unless the evidence is of 

such a nature that under no view which the jury might lawfully take of it, favorable 

to the adverse party, could a verdict for the latter be upheld[.]’” Borda v. E. Coast 

26
Entm’t., Inc., 950 So. 2d 488, 490 (Fla. 4th DCA 2007) (quoting Little v. Publix 

Supermarkets, Inc., 234 So. 2d 132, 133 (Fla. 4th DCA 1970)). A motion for a 

directed verdict made post-verdict is subject to the same analysis as a motion made 

during a trial. Johnson v. Swerdzewski, D.D.S., 935 So. 2d 57, 60 (Fla. 1st DCA 

2006). 

Courts should treat motions for directed verdicts with “special caution, and 

this is especially true in negligence cases where the function of a jury to weigh and 

evaluate the evidence is particularly important since reasonable people can draw 

various conclusions from the same evidence.” Id. Accord Blake v. Hi Lu Corp., 

781 So. 2d 1122, 1124 (Fla. 3d DCA 2001). A motion made following a jury’s 

verdict should be treated even more cautiously because a trial court should afford a 

jury’s verdict great deference. See Frazier v. Honeywell Int’l, Inc., 518 F. Supp. 

2d 831, 835 (E.D. Tex. 2007). Courts should only grant such post-verdict motions 

when “the facts and inferences point so strongly in favor of the movant that a 

rational jury could not reach a contrary verdict.” Id. (quoting Pineda v. United 

Parcel Serv., Inc., 360 F.3d 483, 486 (5th Cir. 2004)) (internal quotation marks 

omitted). 

In the instant case, CSX moved for a directed verdict at the close of 

appellant’s case, which the trial court denied. CSX then renewed its motion after 

the jury returned a verdict finding CSX negligent. At this juncture, the trial court 

27
granted the motion finding, in part, that CSX had no duty to anticipate Mr. Sells 

would suffer a heart attack, and any duty it may have had arose with the 

emergency itself. It further found that because the evidence presented at trial did 

not demonstrate that Mr. Sells had any chance of survival even if the EMT had 

arrived as quickly as possible, CSX had no duty to provide prompt medical care to 

Mr. Sells. These conclusions require an analysis of the duty owed by CSX to Mr. 

Sells as well as the facts presented at trial. As set forth infra, in my opinion the 

majority, as did the trial court below, incorrectly assesses the facts that were 

presented to the jury, and misapplies the controlling federal law and regulations, 

and case law. Consequently, I conclude that the trial court abused its discretion 

when it granted the post-verdict motion for directed verdict and would reverse on 

that basis.

B. DUTY

In Norfolk Southern Railway Co. v. Sorrell, 549 U.S. 158 (2007), the United 

States Supreme Court explained that, unlike typical workers’ compensation 

schemes, which provide relief to employees regardless of fault, plaintiffs seeking 

relief under FELA must show they have suffered injury as a result of the 

employer’s negligence. Id. at 165 (citing 45 U.S.C. § 51). The Supreme Court 

further explained that “[a]bsent express language to the contrary, the elements of a 

FELA claim are determined by reference to the common law.” Id. at 165-66 

28
(citing Urie v. Thompson, 337 U.S. 163, 182 (1949)). Under FELA, to prevail in a 

negligence action the plaintiff must prove that 1) the employer owed a duty of care 

to the employee; 2) the employer breached that duty by acting negligently; 3) it 

was foreseeable that the employee would be injured; and 4) the employer’s 

negligence caused the injury. See Adams v. CSX Transp., Inc., 899 F.2d 536, 539 

(6th Cir. 1990). 

As explained in Forcino v. National Railroad Passenger Corp., 671 So. 2d 

888 (Fla. 5th DCA 1996), FELA is a broad remedial statute that is to be liberally 

construed to accomplish Congress’ intent to provide a federal remedy for railroad 

workers who suffer personal injuries due to the negligence of rail companies. Id. 

at 889. Congress enacted FELA with a capacious objective because it “‘was 

dissatisfied with the common-law duty of the master to his servant. The [FELA] 

statute supplants that duty with the far more drastic duty of paying damages for 

injury or death at work due in whole or in part to the employer’s negligence.’” Id. 

at 890 (quoting Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506-510 (1957)) 

(emphasis added). In fact, if the evidence indicates that the employer’s negligence 

“‘played any part at all in the injury or death[,]’” then judges “‘are bound to find 

that a case for the jury is made out whether or not the evidence allows the jury a 

choice of other probabilities.’” Id. at 889 (quoting Rogers, id.) (emphasis supplied 

in Rogers). A plaintiff seeking to hold an employer liable in negligence under 

29
FELA carries a significantly lighter burden than that required in an ordinary 

negligence case. Smith v. Soo Line R.R. Co., 617 N.W.2d 437, 439 (Minn. Ct. 

App. 2000).

Whether a railroad has a duty under FELA is a question of law to be decided 

by the court, whereas the other three elements—breach of duty, foreseeability, and 

causation—are questions of fact for the jury. Norfolk S. Ry. Co. v. Zeagler, 748 

S.E.2d 846, 851-52 (Ga. 2013) (stating that the legal question of duty should be 

kept separate from the factual questions of breach, foreseeability, and causation “to 

ensure that the court does not inappropriately decide factual issues that should be 

submitted to the jury,” citing Wilkerson v. McCarthy, 336 U.S. 53, 55 (1949)).

Turning to the merits of the instant appeal, the threshold issue is whether 

CSX owed a duty to Mr. Sells under the emergency medical situation presented by 

the facts, and, if so, what it was required to do. 

As the trial court acknowledged, FELA places upon a railroad employer the 

duty to provide a reasonably safe workplace. See Atchison, Topeka & Santa Fe 

Ry. Co. v. Buell, 480 U.S. 557, 558 (1987). A “reasonably safe workplace”

does not mean that the railroad has the duty to eliminate all workplace 

dangers, but it does have the “duty of exercising reasonable care to 

that end.” Van Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265, 

269 (6th Cir. 2007), cert. denied, -- U.S. --, 129 S. Ct. 489 [] (2008) 

(citing Baltimore & Ohio S.W.R. Co. v. Carroll, 280 U.S. 491, 496 [] 

(1930)). “A railroad breaches its duty to its employees when it fails to 

use ordinary care under the circumstances or fails to do what a 

reasonably prudent person would have done under the circumstances 

30
to make the working environment safe.” Id. (citing Tiller v. Atl. 

C.L.R. Co., 318 U.S. 54, 67 [] (1943); Aparicio v. Norfolk & W. Ry.,

84 F.3d 803, 811 (6th Cir. 1990)). In other words, “a railroad 

breaches its duty when it knew, or by the exercise of due care should 

have known that prevalent standards of conduct were inadequate to 

protect the plaintiff and similarly situated employees.” Id. at 269-70 

(internal quotations omitted).

Jordan v. Burlington N. Santa Fe R.R. Co., 2009 WL 112561 at *6 (Tenn. Ct. App. 

2009) (emphasis added).

Under Florida law, duty may be derived from four sources: 1) legislative 

enactments or administrative regulations; 2) judicial interpretations of those 

statutes or regulations; 3) other judicial precedent; and 4) a duty arising from the 

general facts of the case. See McCain v. Fla. Power Corp., 593 So. 2d 500, 503 n. 

2 (Fla. 1992). 

Looking first to legislative enactments, in addition to FELA, in 1970 

Congress adopted the Federal Railroad Safety Act (“FRSA”) to “promote safety in 

every area of railroad operations and reduce railroad-related accidents and 

incidents.” 49 U.S.C. § 20101. The FRSA empowers the Secretary of the 

Department of Transportation to act through the Federal Railroad Administration 

(“FRA”) to prescribe regulations and issue orders “for every area of railroad safety 

supplementing laws and regulations in effect.” 49 U.S.C. § 20103. The FRA 

assumes exclusive regulatory authority over railroad safety matters when it 

possesses special competence due to its expertise in addressing railway safety. See

31
43 Fed. Reg. 10,585 (Mar. 14, 1978). In matters not specifically regulated by the 

FRSA and the FRA, the Occupational Safety and Health Act (“OSHA”), also 

adopted by Congress in 1970, can, in certain situations, operate to fill in any safety 

gaps to further ensure safety in the railroad system. See S. Pac. Transp. Co. v. 

Usery, 539 F.2d 386, 389-91 (5th Cir. 1976) (discussing that the FRA does not 

have an “industry-wide exemption” that would render OSHA regulations 

preempted in the railroad workplace), cert. denied, 434 U.S. 874 (1977). Courts 

have held that where the FRA does not preempt OSHA, OSHA regulations are 

admissible as general evidence of a railway’s negligence. See Ries v. Nat’l R.R. 

Passenger Corp., 960 F.2d 1156, 1165 (3rd Cir. 1992).

In turn, OSHA regulation 29 C.F.R. 1910.151(b) requires that when 

employees work in a location without an infirmary, clinic, or hospital “in near 

proximity” to the workplace, an employer “shall” have a person or persons 

adequately trained in “first aid” available to treat an injured employee. This 

regulation signals that Congress foresaw the probability that employees will suffer 

illness or injury, and recognized that because employees working in remote 

locations are more susceptible to delayed access to EMTs or medical facilities, 

employers must provide basic medical care on-site. 

OSHA does not define “first aid.” Nor has a careful search revealed any 

FELA case defining “first aid.” It has been suggested by some courts that it is 

32
appropriate to look to cases addressing the common law duty owed by businesses 

to invitees when analyzing duties owed by railways to their employers because 

“the railroad’s duty ‘seems not unlike the duty of the owner of premises to an 

invitee. The owner must use care to keep the premises reasonably safe for the 

protection of the invitee.’” Glenn v. Union Pac. R.R. Co., 176 P.3d 640, 643 

(Wyo. 2008) (quoting Chicago B. & Q. R.R. v. Murray, 277 P. 703, 707 (Wyo. 

1929)) (footnote omitted). 

In undertaking an analysis of whether CSX owed a duty to present CSXprovided CPR or an AED, or prompt medical care, to Mr. Sells, it should be noted 

that the jury verdict form given to the jury did not break down liability into these 

three separate categories. Instead, as noted above, the verdict form simply asked 

the jury to determine if CSX’s “negligence” was a legal cause of Mr. Sells’ death.

i. CPR and AEDs

In regard to CPR and AEDs, the trial court, and the majority, rely in part 

upon L.A. Fitness International, LLC v. Mayer, 980 So. 2d 550 (Fla. 4th DCA 

2008), to support their conclusion that CSX did not owe Mr. Sells the duty to 

provide an AED or CPR by a CSX-trained employee. In L.A. Fitness, the Fourth 

District Court of Appeal considered a case in which a plaintiff sued a health club 

and asserted that the business had a duty to, among other things, have an AED onsite and to administer CPR to her father, a club member, who suffered cardiac 

33
arrest while exercising. The court looked to Pacello v. Wyndham International, 

Inc., 2006 WL 1102737 (Conn. Super. Ct. 2006), in which the Connecticut 

Superior Court analyzed the duty owed by innkeepers to injured or ill guests, and 

as part of its analysis defined what constitutes “first aid.” 980 So. 2d at 559. Both 

the L.A. Fitness and the Pacello courts concluded that, based upon sources such as 

the American Red Cross, first aid does not include providing CPR to its invitees 

because first aid constitutes more basic acts such as controlling bleeding by 

applying pressure, removing a drowning victim from water, irrigating a chemical 

burn, or calling for help. Comparatively speaking, CPR is more than “mere ‘first 

aid’” because it requires training to perform it. Id. Moreover, the Fourth District 

declined to find that the business had a duty to provide AEDs because there was no 

common law or statutory duty that a business have an AED on its premises, and 

because other courts have uniformly found that business establishments do not 

have a duty to provide AEDs on their premises. Id. at 561. The Fourth District 

concluded that, to meet its duty to its invitees, a business is only required to 

promptly summon EMTs in order to provide medical assistance. Id. at 562.

In my view, however, an analysis adopting and applying case law 

concerning the business-customer relationship is problematic as applied to the 

instant case, which concerns an employer-employee relationship, and, more 

important, an employee sent by his employer to work in a remote location. In 

34
reaching this conclusion, I look to the recent Florida Supreme Court case, Limones 

v. School District of Lee County, 40 Fla. L. Weekly S182 (Fla. Apr. 2, 2015) 

(“Limones II”), in which the supreme court reviewed the Second District Court of 

Appeal’s decision in Limones v. School District of Lee County, 111 So. 3d 901 

(Fla. 2d DCA 2013) (“Limones I”), and the assertion that it expressly and directly 

conflicts with McCain v. Florida Power Corp. 40 Fla. L. Weekly at S182. 

Specifically, it considered a situation in which a student participating in a school 

soccer game suffered cardiac arrest and ultimately experienced a severe brain 

injury due to lack of oxygen caused by a delay in administering treatment with an 

AED. In this context, the supreme court was called to consider the significance of 

section 1006.165, Florida Statutes, which requires all public schools that are 

members in the Florida High School Athletic Association to acquire an AED, train 

personnel in its use, and register its location with EMTs.

In Limones I, the Second District considered L.A. Fitness and ruled there 

was no distinction between the duty owed by the health club to its invitee, and the 

duty owed by the school district to the student. 111 So. 3d at 906. The supreme 

court rejected this ruling. It explained:

The Fourth District in L.A. Fitness determined that the duty owed by a 

commercial health club to an adult customer only required employees 

of the club to reasonably summon emergency responders for a patron 

in cardiac distress. . . . The adult customer and the health club stand in 

a far different relationship than a student involved in school activities 

with school board officials. Although some courts in other 

35
jurisdictions have determined that fitness clubs and other commercial 

entities do not owe a legal duty to provide AEDs to adult customers,[] 

the commercial context and relationship of parties in these cases is a 

critical distinction from the case before us. Despite the fact the 

business proprietor-customer and school district-student relationships 

are both recognized as relationships, these relationships are markedly 

different. We initially note that the proprietor-customer relationship 

most frequently involves two adult parties, whereas the school-student 

relationship usually involves a minor. Furthermore, the business 

invitee freely enters into a commercial relationship with the 

proprietor.

Limones II, 40 Fla. L. Weekly at S184 (citations and footnote omitted). 

I consider the situation in the instant case, involving an employer-employee 

relationship, also to be markedly different from a business-customer relationship. 

In the latter situation, the customer willingly enters onto the business’s premises 

and is free to leave when he or she chooses. In the employer-employee 

relationship, the employer controls the employee; if the employee wishes to remain 

employed he must work when and where the employer directs him. See Saudi 

Arabian Airlines Corp. v. Dunn, 438 So. 2d 116, 120 (Fla. 1st DCA 1983). As this 

Court explained in Dunn: 

“An employee is one who for consideration agrees to work subject to 

the orders and directions of another, usually for regular wages but not 

necessarily so, and, further, agrees to subject himself at all times 

during the period of service to the lawful orders and directions of the 

other in respect to the work to be done. Customarily, the employer 

determines both the method and manner in which the work is to be 

done as well as the time and tenure of the service. [citations omitted]”

Id. (quoting City of Boca Raton v. Mattef, 91 So. 2d 644, 647 (Fla. 1956)).

36
Furthermore, another important factor that distinguishes L.A. Fitness and the 

cases upon which the Fourth District relied in order to reach the conclusion that the 

health club did not have a duty to provide AEDs or CPR but only to call EMTs, is 

that all of the businesses in those cases were readily accessible by EMTs, as they 

were located in populated areas. Here, we have a situation where Mr. Sells was 

working in a remote location. 

I believe the correct analysis to be applied regarding whether CSX owed a 

duty to provide CPR and an AED to Mr. Sells is set forth in Limones II. In 

concluding that the school district owed the student the duty to act with reasonable 

care under the circumstances to avoid or mitigate further aggravation of the injury, 

the supreme court explained:

“Reasonable care under the circumstances” is a standard that may 

fluctuate with time, the student’s age and activity, the extent of the 

injury, the available responder(s), and other facts. Advancements 

with technology and equipment today, such as a portable AED, to 

treat an injury were most probably unavailable twenty years ago, and 

may be obsolete twenty years from now. We therefore leave it to the 

jury to determine, under the evidence presented, whether the 

particular actions of [the school district’s] employees satisfied or 

breached the duty of reasonable care owed.

Limones II, 40 Fla. L. Weekly at S184 (emphasis added). Granted, the supreme 

court emphasized the point that the school district was in a position of authority 

over the young student who was mandated by law to be in its care. Although not 

as authoritative and restrictive of a relationship as this, CSX and Mr. Sells were in 

37
an employer-employee relationship in which CSX dictated to Mr. Sells where he 

would work. I would conclude that this relationship is distinctly different from the 

business-customer relationship as characterized by the Fourth District in L.A. 

Fitness, because of the control the employer exercises over the employee. 

Consequently, in examination of the entirety of the factual situation before 

us, the jury could conclude that CSX failed to provide Mr. Sells with a reasonably 

safe workplace when it failed to provide CPR and an AED in his aid. Unlike 

Limones II, which involved an order granting a motion for summary judgment, 

here, the trial court instructed the jury to consider whether CSX breached its duty 

to provide a reasonably safe workplace by failing to provide CPR or an AED, and 

prompt medical care, to Mr. Sells. As already noted, the jury verdict form did not 

break down the issue of CSX’s liability as to its failure to provide reasonable care 

in these three specific areas. Instead, it was a general verdict form indicating the 

jury found that CSX’s negligence caused Mr. Sells’ death. Given the facts in the 

record before us, and in particular the record testimony that I will discuss, infra, I 

conclude there was competent, substantial evidence from which the jury could 

have found CSX liable for failing to supply CPR and an AED to Mr. Sells. 

The trial court, as affirmed by the majority, concluded that CSX did not have 

a duty to provide CPR or an AED to Mr. Sells because “long-standing” case law 

indicates CSX did not have the duty “to take preventative actions in anticipation of 

38
an employee falling ill at work” or “to take anticipatory measures to prevent such 

emergency situations.” Both the trial court and the majority appear to be asserting 

that employers do not have a duty to anticipate, or foresee, that employees will 

suffer medical emergencies requiring prompt medical treatment, and therefore they 

do not need to plan for such emergencies, because the duty “arises with the 

emergency.” They conclude that employers only need to respond when the 

emergency arises, basically, in the best way they can as the situation unfolds. In 

this regard, according to the majority, employers only have a duty to promptly call 

EMTs—and only if there is a likelihood that calling EMTs will result in the injured 

or ill employee surviving. To support this conclusion, the majority relies primarily 

on two cases, Szabo v. Pennsylvania R. Co., 40 A.2d 562 (N.J. 1945), and Wilke v. 

Chicago, Great Western Railway Co., 251 N.W. 11 (Minn. 1933).

 Szabo concerned a situation in which, at that time, employers did not have 

a duty to provide medical care to an injured employee unless a specific statute 

required such, or the employer and employee had a contract between them 

requiring the employer to provide treatment—even when the injury was caused by 

the negligence of the railroad. 40 A.2d at 563. Szabo rejected the assertion that 

these are the only situations in which an employer had a duty to provide medical 

care to an employee. Instead, it created what has become known as the “humane 

39
instinct doctrine,”11 and held that when an employee becomes seriously ill and is 

unable to care for himself, at that point the railroad has a duty to seek appropriate 

medical care for the employee. Thus, Szabo elevated the duty of care formerly 

afforded employees, which was, as noted, only applicable when there was a statute 

or contract in place requiring it. Instead, employers thereafter were charged with 

the duty to seek appropriate medical care for all employees injured or taken ill 

while working for a railroad, even in the absence of a contract or statute. 

A comprehensive survey of cases citing Szabo indicates that no court has 

concluded the language stating that an employer has a duty to provide care once 

the emergency arises, means there is no duty to anticipate emergency medical 

situations that might arise, or to plan for them.12 Of the less than thirty published 

cases that cite to Szabo, every one that actually discusses it, analyzes it in terms of 

the New Jersey Supreme Court’s recognizing an employer’s duty of care where 

one previously did not exist, the duty consisting of a specifically limited role where 

none previously existed, and the decision’s role in the evolutionary process of 

recognizing the duty owed by employers. None of the decisions states that an 

11 See generally Valentin v. Charles Beseler Co., 2005 WL 3500313 (N.J. Super. 

Ct.2005).

12 Indeed, for example, OSHA regulation 29 C.F.R. 1910.151(b), requiring basic 

first aid to be supplied to employees working in remote locations, indicates it is 

foreseeable that employees will suffer injuries and need care, and in anticipation of 

that eventuality, employers need to ensure there is a person on-site who can 

provide this care.

40

 
employer has the duty only to respond to a medical emergency as it may arise, with 

no need to consider what measures might be needed in anticipation of those 

emergencies.

Wilke concerned a situation in which an employee began to exhibit signs 

that he was not well, and, over the course of about a half hour, wound up dying of 

what appeared to have been heat stroke. 251 N.W. at 13. The crux of Wilke’s 

argument was that the railroad should have known its employee was sick, and 

should have done something about it, such as recognizing that due to the heat, the 

railroad should have had a doctor at the worksite in anticipation that some of the 

workers could be taken ill. The Minnesota Supreme Court rejected this assertion 

and stated the railroad did not have a duty to anticipate that any employee would 

be taken ill from heatstroke such that a doctor needed to be provided on-site. But 

again, as with Szabo, a careful search of case law indicates that, of the three 

published cases that cite to Wilke, none has cited it for the proposition that an 

employer does not have a duty to anticipate medical emergencies and prepare to 

address them. 

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. 

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 

41
to provide a reasonably safe workplace, which necessarily requires anticipation of 

the types of injuries that could occur, and how they can be avoided. See, e.g., Atl. 

Coast R.R. Co. v. Chancey, 76 So. 2d 871, 873 (Fla. 1955) (“‘The [e]mployer is 

not held to an absolute responsibility for the reasonably safe condition of the place, 

tools and appliances, but only to the duty of exercising reasonable care to that end, 

the degree of care being commensurate with the danger reasonably to be 

anticipated.’”) (emphasis added).13

In conclusion, in recognition of the nature of the employer-employee 

relationship, and in concert with Limones II, I would reverse the trial court’s order 

finding that CSX did not owe a duty to Mr. Sells to supply CSX-provided CPR and 

an AED. 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. See Limones II, 40 Fla. L. Weekly at S184.

ii. Prompt Medical Care

49 U.S.C. section 20109 of the FRSA, sets forth certain employee 

protections. Specifically, subsection 20109(c) prohibits a railroad from delaying 

medical or first aid treatment, and requires that a railroad “promptly arrange” to 

have the injured or ill employee transported to the nearest hospital. This regulation 

13 I would point out that during trial industrial hygienist Michelle Copeland 

presented to the jury 2001 OSHA data showing that 13% of all workplace fatalities 

resulted from sudden cardiac arrest.

42

 
is related to an employer’s duty under FELA to provide prompt medical care to its 

employees rendered ill or suffering an injury while working. The duty to provide 

prompt medical treatment is also recognized in case law. See Pulley v. Norfolk S. 

Ry. Co., 821 So. 2d 1008, 1014-15 (Ala. Civ. App. 2001) (reversing an order 

granting summary judgment where a railway caused a delay in providing prompt 

medical care to a worker who had a heart attack on the job, causing additional 

heart damage). To recover on a claim that a railway failed to provide prompt 

medical care, the employee or his estate must establish that the employee became 

ill at work; that without prompt medical treatment he faced death or serious bodily 

harm; that the railway had notice of the illness and failed to furnish prompt 

medical attention; and the employee’s death or injury resulted in whole or in part

from the railway’s delay in responding. Id. (citing Randall v. Reading Co., 344 F. 

Supp. 879 (M.D. Pa. 1972)). Furthermore, the specific injury that occurs need not 

be foreseeable; it is sufficient if it is foreseeable that general harm could result 

from a certain negligent practice. Id. at 1013-14 (citing Gallick v. Baltimore & 

Ohio R.R., 372 U.S. 108 (1963)).

The facts of the instant case are similar to those in Bridgeman v. Terminal 

Railroad Ass’n of St. Louis, 552 N.E.2d 1146 (Ill. App. Ct. 1990). In that case 

Bridgeman began to feel ill while working at a train yard. Id. at 1147. He told a 

co-worker he did not feel well, and he laid down on a bench. The co-worker 

43
attempted to rouse Bridgeman so the train could leave, but Bridgeman continued to 

report he did not feel well. Bridgeman went into the bathroom and after some 

time, the co-worker heard him call out for the foreman. The co-worker located the 

foreman, and the foreman returned to the bathroom and called to Bridgeman, but 

Bridgeman did not respond. The foreman then left to get his supervisor. About 

fifteen minutes passed between when Bridgeman first reported feeling ill and when 

the foreman and his supervisor found him in the bathroom, slumped against the

wall, pale, cold, and without a pulse. Meanwhile, the supervisor called the 

yardmaster to contact an ambulance, but when no ambulance arrived he called the 

yardmaster three or four additional times. An ambulance arrived approximately 

forty-five minutes later. The ambulance report indicated it had not received a call 

for help until approximately forty-five minutes after the foreman and the 

supervisor found Bridgeman in the bathroom. Testimony at trial indicated that an 

ambulance station was located several blocks from the train yard, and an acute 

trauma center was located about one minute away. Bridgeman’s autopsy revealed 

his death was caused by acute myocardial infarction, and he had severe obstructive 

artery disease.14 Id. at 1147-48. 

The administrator of Bridgeman’s estate filed suit under FELA, asserting 

that the railway had a duty under FELA to provide prompt emergency medical 

14 The instant record indicates that Mr. Sells did not have a myocardial infarction 

but he did have between 60 to 90 percent obstruction in three arteries.

44

 
care. Id. at 1148. A jury rendered a verdict in the estate’s favor, and the railway 

appealed, arguing it did not have a duty to render aid and it did not cause 

Bridgeman’s death because he was already dead when discovered. Id. 

The Illinois appellate court opined that the railway had a duty to render 

prompt medical care, but the railway thwarted that duty by delaying the EMT’s 

response. Id. It further concluded the evidence was sufficient to establish under 

the plain language of FELA that the railway was liable, at least in part, for 

Bridgeman’s death, even with post-mortem evidence of myocardial infarction and 

obstructive artery disease, due to its delay in contacting the EMT. Id. (citing 

Randall v. Reading Co., 344 F. Supp. at 881-82). 

In the instant case, the uncontroverted evidence revealed CSX had a policy 

requiring employees on trains to contact the CSX dispatcher via a fixed radio when 

experiencing an emergency situation. The evidence further indicated that CSX had 

a blanket policy forbidding its employees from using their cell phones while 

working. This prohibition appears to stem from FRA regulations governing the 

use of personal cell phones and other electronic devices while a rail employee is 

working. These regulations are intended to reduce safety risks that can occur 

because of distraction, and forbid the use of these devices if they would interfere

with the “performance of safety-related duties.” 49 C.F.R. §§ 220.301 & 220.303. 

Specifically, a “railroad operating employee” may not have his personal electronic 

45
device turned on when a train is moving, when a crew member is on the ground or 

riding rolling equipment during a switching operation, or when assisting with the 

preparation of the train for movement. 49 C.F.R. § 220.305. However, there are 

exceptions to this regulation, the most crucial being that a railroad employee may 

use a personal electronic device “as necessary to respond to an emergency situation 

involving the operation of the railroad or encountered while performing a duty for 

the railroad.” 49 C.F.R. § 220.309. 

The record clearly indicates that CSX had no policy or plan in place to 

effectuate or allow for this “emergency situation” exception. Moreover, the 

testimony and evidence presented at trial indicate that CSX gave little thought as to 

how it would meet its duty to ensure employees working in remote locations would 

receive prompt medical care in emergency situations. First, CSX had in place a 

policy requiring train employees to use a fixed radio to call a dispatcher, thus 

placing responsibility on the dispatcher to relay the location and nature of the 

emergency which, as here, was unfolding in a remote location. The deficiency of 

this policy was further exacerbated by CSX’s flawed internal procedures and 

equipment used to determine train locations—which testimony indicates was timeconsuming to operate—in a situation where time was of the essence. Although this 

remote location was occupied on a daily or near daily basis, the CSX dispatcher 

could not identify the location for the EMT, and even resorted to contacting other 

46
CSX employees outside of the CSX dispatch office for guidance and assistance. It 

was not until Mr. Wells at last turned on his cell phone and fielded a call from 

another CSX employee that the location was successfully provided to the EMT. 

The record is clear: the CSX dispatcher was ineffectual in getting the EMT to Mr. 

Sells. As in Bridgeman, the evidence incontrovertibly indicates that CSX caused a 

delay in the EMT promptly responding to Mr. Sells. 

To summarize, CSX owed a duty to Mr. Sells to exercise reasonable care to 

ensure he received prompt medical attention. See Pulley, 821 So. 2d at 1014; Van 

Gorder, 509 F.3d at 269; Bridgeman, 552 N.E.2d at 1148. The jury found CSX 

breached this duty by failing to use ordinary care to establish a safe working 

environment, as evidenced by the fact that it had a deficient emergency contact 

procedure in place—which it mandated the employees follow—that caused a delay 

in Mr. Sells’ receiving prompt emergency medical treatment. See 49 U.S.C. § 

20109(c); Pulley, supra.; Van Gorder, supra.; Bridgeman, supra. CSX should have 

foreseen that its first-aid policy was inadequate to ensure that the EMT could have 

promptly responded to Mr. Sells’ remote location. Pulley, 821 So. 2d at 1013-14 

(“Under the courts’ broad interpretation of ‘foreseeability of harm’ in FELA 

actions, the foreseeability of the specific harm resulting from the negligence is not 

required. It is sufficient if the employer could foresee general harm resulting from 

a certain negligent practice.”).

47
Despite the case law, the record evidence, and the jury verdict, the majority, 

as did the trial court, concludes that CSX did not have a duty to provide prompt 

medical care to Mr. Sells because the trial testimony was “uncontroverted” that 

even if the EMT had arrived as quickly as possible, which the majority states was 

fifteen minutes, Mr. Sells would have died anyway. This evidentiary assessment is 

not accurate. 

First, one of the Clay County paramedics who responded to the 911 call 

testified that they arrived at Mr. Sells’ side just over thirteen minutes after the call 

was received at the Clay County rescue station. He testified his records indicated 

that by the time the EMT arrived, Mr. Sells had been on the ground between thirtyfive to forty-five minutes. Further, the 253 pages of the trial transcript setting forth 

the testimony of Mr. Sells’ treating physicians and the medical experts retained to 

analyze his medical records and the emergency event, clearly reflect that not one of 

them stated that “the administration of emergency medical treatment, at that point 

in time, without more, could not have prevented Sells’ death.” None of the five 

medical experts—including three board-certified cardiologists—who testified at 

trial stated it was a foregone conclusion that Mr. Sells had no chance of survival 

because the EMT had arrived in just under fourteen minutes. Instead, the medical 

testimony demonstrates the amorphous and nebulous nature of survivability in an 

emergency situation involving a heart attack, and the inability of any of the experts 

48
to quantify survivability other than in terms of it being a “possibility” or a 

“probability.” 

Specifically, the record indicates that Dr. Orlando Bautista, Mr. Sells’ 

general practitioner in New York, testified as to the difficulty in ascertaining 

survivability, and explained that heart rhythm could be restored “after many 

minutes of cardiac arrest, sometimes 15 minutes, 20 minutes.” He stated that 

oxygenation of the brain should be restored as soon as possible, and preferably 

within ten minutes so that a cardiac victim does not suffer brain death. He stated 

that while brain death is likely to occur if there is no oxygenation by ten minutes 

into the emergency, medical professionals would “keep trying . . . even if it’s half 

an hour, we keep trying to resuscitate . . . depending on what’s transpiring, 

sometimes we wait an hour.” When asked if he had an opinion within a reasonable 

degree of medical probability as to whether Mr. Sells would have survived if the 

EMT had arrived within fifteen minutes as opposed to thirty, he stated, “His 

chances would have been better. It would be difficult to measure, but I – just 

common sense says it would say it would have been better.” When pressed by 

counsel whether there was “much of a hope” of survival after ten minutes, Dr. 

Bautista stated that “recovery rates go[] very low after 10 minutes.” 

Dr. Michael Fifer, a board-certified cardiologist, testified that the “great 

likelihood” was that Mr. Sells died of an arrhythmia related to coronary artery 

49
disease, and that, in his opinion, Mr. Sells’ chance of survival would have 

increased if he had received prompt medical treatment. He stated that if the EMT 

had arrived in less than thirty-five minutes the “window of survivability [] would 

have been sufficient[,]” especially if CPR and/or an AED had been utilized. He 

concluded that, to a reasonable degree of medical probability, Mr. Sells’ survival 

would have increased had proper CPR been performed, or an AED had been 

available, or prompt medical treatment had been provided. On cross-examination 

he reiterated several times that if Mr. Sells had received prompt medical treatment, 

his chances of survival would have increased. However, he agreed with CSX’s 

counsel that if Mr. Sells had gone without respiration for more than fifteen 

minutes, it would be “more likely than not” that he would have been brain dead by 

the time the EMT arrived. On direct, he explained that persons suffering “sudden 

death” from cardiac arrest could actually “be dead in the absence of efforts at 

resuscitation” and then be restored to life. He stated that, in his opinion, Mr. Sells 

suffered from one of the “more survivable” forms of arrhythmia, and he reiterated 

that if timely medical intervention had been provided, Mr. Sells’ probability of 

survival would have increased, even absent CSX-provided CPR or an AED. The 

remainder of his testimony reveals the impossibility of definitively concluding that 

Mr. Sells would have died even if the EMT had arrived within fifteen minutes, as 

well as the impossibility of stating he would have lived, even if provided with 

50
CPR, and/or an AED, and/or prompt medical care. In regard to the issue of 

providing prompt medical care, Dr. Fifer concluded his testimony by stating that 

had CSX provided prompt medical treatment, separate from the use of CSXprovided CPR or an AED, within “a reasonable degree of medical probability” Mr. 

Sells’ likelihood of survival would have increased.

The only other medical expert to opine on Mr. Sells’ survivability with 

prompt medical care was Dr. Michael Zile, a board-certified cardiologist. He 

opined that, as to the different forms of arrhythmia Mr. Sells may have 

experienced, he had between a zero to thirty percent chance of surviving. 

However, he stated he could not identify a specific cause of death. Nonetheless, he 

opined that even if Mr. Sells had timely received CPR, treatment with an AED, and 

prompt medical care, he was “not likely” to have survived. On cross examination, 

however, he agreed that sudden death was not “necessarily permanent” and with 

proper medical care a person could recover from it.

 My reading of the trial transcript indicates that, contrary to the majority’s 

conclusion,15 the medical testimony did not “conclusively demonstrate” that there 

15 The majority attempts to buttress their conclusion in this regard by relying upon 

counsel’s apparent “concession” to the Court during oral argument. This Court, 

however, is not required to accept a concession when the record indicates the facts 

do not comport with it. See, e.g., Fichera v. State, 688 So. 2d 453, 453 (Fla. 1st 

DCA 1997) (rejecting state’s concession that trial court abused its discretion when 

setting the amount of restitution, because competent evidence supported the trial 

court’s assessment).

51

 
was “no possibility of [the EMT] arriving soon enough to save Mr. Sells, even if 

CSX summoned help as quickly as possible.” (Emphasis added.) Instead, the trial 

testimony reflects that no medical professional could definitively state that Mr. 

Sells would have died even if the only care provided was calling the EMT, which 

responded as quickly as possible. The only point upon which the medical 

professionals agreed was that Mr. Sells’ chances of survival decreased the longer 

he was denied medical care. 

Furthermore, the trial court’s finding—that “no reasonable jury could reach 

a verdict for the plaintiff on th[e] basis [that CSX breached its duty to provide 

timely medical care], because [appellant] presented no evidence that CSX’s 

response to Mr. Sells’ cardiac arrest caused his death”—is flawed in several 

respects. (Emphasis added.) First, under the facts of this case, the correct legal 

analysis is not whether CSX caused Mr. Sells’ death, but whether it had any part at 

all in causing Mr. Sells’ death. See Forcino, 671 So. 2d at 889. “‘Under [FELA] 

the test of a jury case is simply whether the proofs justify with reason the 

conclusion that employer negligence played any part, even the slightest, in 

producing the injury or death for which damages are sought.’” CSX Transp., Inc. 

v. McBride, 131 S. Ct. 2630, 2636 (2011) (emphasis added) (citing Rogers, 352 

U.S. at 506).

Second, the record demonstrates that appellant presented evidence, 

52
particularly in the form of Dr. Bautista’s and Dr. Fifer’s testimony, from which the 

jury could conclude that CSX contributed to Mr. Sells’ death. 

Third, the trial court failed to acknowledge the governing case law such as 

Forcino and McBride, in which the Supreme Court, citing Urie and Rogers, 

discussed FELA’s relaxed causation standard. The McBride court explained that 

FELA’s language regarding causation was “‘as broad as could be framed’” and, 

due to the “breadth of the phrase, ‘resulting in whole or in part from the 

[railroad’s] negligence,’” combined with Congress’ “‘humanitarian’” and 

“‘remedial goal[s],’” when compared to common law tort litigation, FELA has a 

more relaxed standard of causation. Id. at 2636 (citing Consol. Rail Corp. v. 

Gottshall, 512 U.S. 532, 542-43 (1994)). 

Fourth, by making this finding, the trial court ventured into the domain of 

the jury regarding the matter of causation. See Limones II, 40 Fla. L. Weekly at 

S183-84; Zeagler, 748 S.E.2d at 851. “Once a court has concluded that a duty 

exists, Florida law neither requires nor allows the court to further expand its 

consideration into how a reasonably prudent person would or should act under the 

circumstances as a matter of law.” Limones II, 40 Fla. L. Weekly at S183. In 

Limones II the supreme court concluded that the Second District “incorrectly 

expanded Florida law and invaded the province of the jury when it further 

considered whether post-injury efforts required Respondent to make available, 

53
diagnose the need for, or use the AED on [the student].” Id. This is exactly what 

the trial court and the majority did and are doing in the instant case: invading the 

province of the jury and concluding (incorrectly, as explained, supra), that because 

Mr. Sells would have died even if the EMT had been promptly summoned, CSX 

did not have a duty to provide prompt medical care. The trial court instructed the 

jury to deliberate on the matter of causation, it did so, and it produced a verdict in 

favor of appellant. Nonetheless, the trial court’s finding that CSX did not “cause” 

Mr. Sells’ death improperly wrested this determination from the jury and 

overturned its verdict. See Linafelt v. Beverly Enters.-Fla., Inc., 745 So. 2d 386, 

389 (Fla. 1st DCA 1999) (“Ordinarily, a trial court should not overturn a jury 

verdict unless ‘there is no evidence or reasonable inferences to support the 

opposing position.’” (citing Stirling v. Sapp, 229 So. 2d 850, 852 (Fla. 1969)) 

(emphasis added). The majority now stamps its imprimatur on this legally 

inappropriate action.

A trial court abuses its discretion when it bases its ruling on an erroneous 

view of the law or a clearly erroneous assessment of the evidence. See Cooter & 

Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990); McDuffie v. State, 970 So. 2d 

312, 326 (Fla. 2007) (citing Cooter & Gell); Criner v. State, 59 So. 3d 196, 197 

(Fla. 1st DCA 2011). Further, as explained in Lynch v. Northeast Regional 

Commuter Railroad Corp., 700 F.3d 906, 916 (7th Cir. 2012), “in FELA cases, the 

54
role of the court is not to search the record for conflicting circumstantial evidence 

and to take the case from the jury because the evidence equally supports 

inconsistent and uncertain inferences. Instead, it is the function of the jury, not the 

court, to select among conflicting inferences and conclusions.” (citing Gallick, 372 

U.S. at 113). I conclude, therefore, that the trial court abused its discretion by 

granting the post-verdict motion for directed verdict for all these reasons.16

The more persuasive and accepted analysis is expressed in Budd v. Erie 

Lackawanna Railroad Co., 225 A.2d 171 (N.J. Super. Ct. Law Div. 1966). In 

Budd, the court reviewed a case in which the railroad argued on appeal that the 

plaintiff failed to prove negligence because she did not prove her husband would 

have survived had the railroad rendered medical aid to treat his heart attack. The 

court observed:

16 I also note that the trial court’s and the majority’s finding that Mr. Sells would 

not have survived even if the EMT was promptly summoned, and thus CSX did not 

have a duty to provide prompt medical care, is basically the act of saddling Mr. 

Sells with the assumption of the risk of not receiving prompt medical care because 

he worked in a remote location. Congress abolished the railroad’s defense of 

assumption of the risk when it enacted FELA in 1908. See 45 U.S.C. § 54. This 

statutes denies the railroad the ability to raise assumption of the risk when the 

railroad played a role in whole or in part in causing an employee’s injury or death. 

The statute also specifically forbids raising assumption of the risk when a railroad 

is in violation of any safety statute, and the violation contributed to the injury or 

death of the employee. Here, CSX was in violation of not only of 49 U.S.C. 

section 20109(c), requiring CSX to provide prompt medical care, but 29 C.F.R. 

section 1910.151(b), which required CSX to provide a person trained in first aid 

on-site, because Mr. Sells was working at a remote location without ready access 

to a medical facility.

55

 
Defendant would require that there be affirmative evidence on 

plaintiff’s part that decedent would have lived if he had been given 

medical attention, and that he would not have died “anyway.” To 

require such expert prescience in the context of a heart case goes 

beyond the standard required by Rogers []. We must recognize that 

there can be no such medical certainty, for there are too many 

imponderables, once given the heart condition. As [the plaintiff’s 

medical expert] said, no one can say what the result would be had 

medical attention been given. Because no such medical certainty 

exists, is a railroad employee,[] who dies and whose employer has 

failed in a duty owed to him, to be deprived of the benefits of FELA –

an act which is construed as being akin to a workmen’s compensation 

law? . . . Not so long as proofs support the inference that the 

employer’s negligence “played a part” in producing the death. The 

proofs here meet that standard.

Id. at 174 (some citations and a footnote omitted).

I would therefore reverse the trial court’s post-verdict order on these 

grounds. 

C. Comparative Negligence

The second point raised by appellant is whether the trial court erred by 

allowing the jury to consider whether Mr. Sells, himself, had been comparatively 

negligent, and by denying appellant’s motion to set aside the jury’s finding to that 

effect. While I would reverse the trial court’s order granting CSX’s post-verdict 

motion for directed verdict, I would affirm the jury’s finding of comparative fault. 

The FRSA states that a railroad is liable for an injury or death suffered by an 

employee if its negligence, in whole or in part, caused the injury or death. 49 

U.S.C. § 51. If an employee was comparatively negligent, any damages are to be 

56
reduced by the jury in proportion to the amount of negligence attributable to the 

employee. 49 U.S.C. § 53. The Fifth Circuit Court of Appeals’ opinion in 

Johnson v. Cenac Towing, Inc., 544 F.3d 296, 303-04 (5th Cir. 2008), is 

instructive. Johnson involved a negligence claim filed pursuant to the “Jones Act,” 

46 U.S.C. section 30103. Jones Act negligence cases follow FELA case law 

because the Act states that FELA regulations and related case law apply to actions 

brought under the Jones Act. Id. at 301 n. 2. See also 46 U.S.C. § 30104; Sobieski 

v. Ispat Island, Inc., 413 F.3d 628, 631 (7th Cir. 2005) (stating that the Jones Act 

incorporates by specific reference FELA case law). In Johnson, the court 

explained that a seaman may be found to have contributed to his injury suffered at 

work where he concealed material information about a preexisting injury or 

physical condition from his employer, exposed himself to re-injury or aggravation 

of his condition, and then suffered re-injury or aggravation as a result. 544 F.3d at 

303-04. 

The instant record indicated that when Mr. Sells filled out CSX’s medical 

questionnaire, he checked the box stating he did not have a history of any heart 

“trouble” or chest pain. However, the record showed that Mr. Sells told his New 

York cardiologist he was having chest pains. Mr. Sells did not inform CSX at any 

time that he had experienced chest pains, or that he underwent three EKGs—two in 

New York and one in Florida—which suggested a possible abnormality. Thus, 

57
under FELA and Johnson, the trial court properly submitted to the jury the 

question of Mr. Sells’ comparative negligence in failing to disclose his chest pains 

and problematic EKGs to CSX. Id. See also 49 U.S.C. § 53; Johnson, supra.

III. Conclusion

For the foregoing reasons I would reverse the final judgment and remand the 

cause to the trial court with directions that the court reinstate the jury’s verdict, 

including its finding that Mr. Sells was forty-five percent comparatively negligent.

58