How Well Do Sinkler and Hopson Float: Vital Operations, Nondelegable Duties, and Agency in FELA and Jones Act Cases?

Abstract

Like two sides in a tug of war, legal principles at issue in a case may pull in different directions. In a tug of war, the side that pulls the hardest wins. In a legal dispute, pulling or relying too heavily on one principle may undermine or sacrifice the other. When interstate railroad workers sue their employers for negligence under the Federal Employers Liability Act (“FELA”) or when seamen sue their employers for negligence under the Jones Act, they benefit from an expanded form of vicarious liability, which the United States Supreme Court initially recognized in Sinkler v. Missouri Pac. R. Co., a case arising under the FELA, and which it reenforced in Hopson v. Texaco, Inc., which arose under the Jones Act.

Pursuant to section 51 of the FELA, which is incorporated into the Jones Act, an employer is liable to its employees for injuries caused by its negligence or the negligence of its “agents.” Under the Sinkler/Hopson doctrine, the Court has held that when a railroad or Jones Act employer relies upon an agent to perform part of its “vital” operations, the employer is responsible for the agent’s negligence. In essence, the employer is vicariously liable for the agent’s negligence, even if the agent is an independent contractor whom the employer does not control and whom the employer exercised due care in selecting. Thus, under Sinkler/Hopson, the employer cannot delegate to another the responsibility for the performance of its vital operations. Conducting key operations is a risk attributable to the employer’s enterprise and the employer is liable when those risks arise and cause injury to the enterprise’s employees, even if the actual negligent injurer is an independent contractor of the employer.

Under Sinkler/Hopson, the courts have given an “accommodating scope” to the word “agents.” But some courts have heavily relied upon agency law in determining the responsibility of the FELA or Jones Act employer. In so doing, those courts have lost sight of Sinkler/Hopsons’ core focus on an employer’s vital operations. As such, they have required some action by the employer indicating that the person performing the relevant duty is some type of agent. They have found agency where there is a contract between the employer and the tortfeasor to provide a service or where the employer has selected the agent to provide a service vital to the enterprise. They have tended not to find agency and responsibility where the employer has played no role in choosing the tortfeasor to perform a service. But when a court refuses to find sufficient agency, it is arguably undermining the employer’s nondelegable duty to provide a safe workplace and/or the duty to provide prompt and adequate medical care to a seaman than by technical agency law. In other cases, the courts find a sufficient relationship where the employer does little more than rely upon a third-party to perform some service which is vital to the enterprise and/or which is a nondelegable duty of the employer, without extensive discussions of agency. Those courts weigh the vital operation or nondelegable duty more heavily than the need for a formal agency. The distinction between the two lines of cases is the focus on the relationship. Some focus on the (contractual) relationship between the employee and the third-party actor. And others focus on the relationship between the employer and employee and the duties the employer owes to the employee.

To return to the metaphor of the tug of war, the harder a court pulls on the agency issue the more likely it is that it may undermine the principle that the employer has a nondelegable duty to provide its workers with a safe place to work and/or a nondelegable duty to provide a seaman with prompt and adequate medical care. Contrariwise, the harder the court pulls on the nondelegable duty principles, the more likely it is that it will expand concepts of agency. But if imposing the true costs of operations on the enterprise is what is really at stake, then sacrificing the niceties of agency law in this context may not be as bad as undermining the significance of holding the enterprise responsible for those duties which it cannot delegate to another. The tension is particularly acute in decisions interpreting Sinkler/Hopson when a seaman is the victim of medical malpractice while undergoing treatment for an injury or illness manifesting itself during the seaman’s service of the ship.

Keywords: Admiralty, FELA, Jones Act, Agency