The “Cole Limitation” – Missouri Aligns with the Seventh Circuit on State-Law Safety Rules and Contributory Negligence under FELA

1. Introduction

Christopher Cole, a brakeman for The Kansas City Southern Railway Company (KCSR), lost both legs after striking a derail sign while attempting to board a slowly-moving locomotive in Illinois. A St. Louis County jury awarded him US $12 million under the Federal Employers’ Liability Act (FELA) on both (a) general negligence and (b) negligence per se based on an Illinois “close-clearance” regulation that the railroad admittedly violated. KCSR appealed, raising four main issues:

Whether testimony by the locomotive engineer (Foulk) about her conversations with KCSR’s lawyers was privileged;
Whether the Illinois regulation barred KCSR’s contributory-negligence defense under 45 U.S.C. §53;
Whether KCSR was entitled to a directed verdict on the negligence-per-se claim;
Whether the circuit court had jurisdiction to add post-judgment interest more than 30 days after its original judgment.

The Missouri Supreme Court (en banc) issued a split outcome: it affirmed liability but reduced damages to US $9.48 million to reflect Cole’s 21 % comparative fault, and it vacated post-judgment interest added by the trial court.

2. Summary of the Judgment

Attorney–client privilege: No privilege attached to the engineer’s statements because (i) she never retained counsel, and (ii) corporate privilege did not extend to her under the DeLaporte test.
Negligence per se / contributory negligence: The Court adopted the Seventh Circuit’s reading in Fletcher v. Chicago Rail Link – only state regulations that “support or implement federal safety norms” qualify as “statutes enacted for the safety of employees” under §53. Illinois’ close-clearance rule does not support any federal rule; therefore KCSR retained its contributory-negligence defense.
Directed verdict: The trial court should have limited Cole’s negligence-per-se submission to allow allocation of fault; failure to do so warranted remittitur, not a new trial.
Post-judgment interest: The trial court lost jurisdiction once it ruled on all timely after-trial motions. Cole’s late request could not be accommodated under Rule 74.06(a) because omission of interest was not merely “clerical.”

3. Analysis

3.1 Precedents Cited and Their Influence

Seaboard Air Line Ry. v. Horton, 233 U.S. 492 (1914) – Held that the §53 proviso applies only to federal statutes, not state laws.
Fletcher v. Chicago Rail Link, L.L.C., 568 F.3d 638 (7th Cir. 2009) – Created the “support or implement federal safety norms” test, limiting which state rules are treated as federal for §53 purposes. Missouri adopts this test today, explicitly aligning itself with the Seventh Circuit.
DeLaporte v. Robey Building Supply, 812 S.W.2d 526 (Mo. App. 1991) – Four-factor test for extending corporate attorney-client privilege to employees; KCSR failed factor 2 (direction by corporate superior).
McGuire v. Kenoma, LLC, 447 S.W.3d 659 (Mo. banc 2014) and Universal Credit Acceptance v. Reno, 601 S.W.3d 546 (2020) – Confirmed narrow use of Rule 74.06(a) for clerical errors; used to strike post-judgment interest award here.

3.2 Court’s Legal Reasoning

Textual & structural reading of §§53, 54a, and 49 U.S.C. §20105: The Court concluded Congress intended only those state regulations that advance federally-set safety standards to qualify as “statutes” for which contributory negligence is barred.
Comity & uniformity: Following Fletcher avoids divergent results between Missouri and Illinois federal courts and maintains predictable national railroad liability rules.
Abuse-of-discretion review of privilege: The trial judge’s factual findings on the absence of an attorney-client relationship were supported by the record; no error.
Jurisdictional finality: Once the court overruled KCSR’s after-trial motions (Day 69 after judgment), the judgment became final under Rule 81.05(a)(2). A brand-new motion for interest filed on Day 77 was untimely; Rule 74.06(a) could not resurrect jurisdiction.

3.3 Impact of the Judgment

The decision has three immediate ripple effects:

The “Cole Limitation” on §53 defenses – Plaintiffs in Missouri FELA cases cannot rely on any state safety regulation to eliminate comparative-fault defenses; they must show the rule implements a federal standard. Expect sharper pre-trial motions over the federal–state nexus of safety rules.
Corporate witness privilege – Railroads and other corporate defendants must document employee representation agreements if they wish to invoke privilege at trial.
Judgment-drafting practices – Trial courts in Missouri must proactively include statutory post-judgment interest, or parties must request it within 30 days, or it is lost. The bar should now routinely insert a proposed interest paragraph in draft judgments.

4. Complex Concepts Simplified

FELA – A 1908 federal statute giving railroad employees a negligence action against their employers; replaces workers’ compensation in the rail industry.
Contributory vs. Comparative Negligence under FELA – §53 adopts “pure comparative” fault unless the railroad violated a qualifying safety statute, in which case plaintiff’s fault is ignored.
Negligence per se – A doctrine treating violation of a statute/regulation as automatic breach of the duty of care, leaving only causation and damages for the jury.
Close-clearance rule – A regulation setting minimum lateral distances between track centerline and trackside structures to protect workers riding side-ladders of trains.
Rule 75.01 & Rule 81.05 – Missouri rules governing the trial court’s 30-day control over judgments and the 90-day extension when timely after-trial motions are filed.
Nunc pro tunc / Rule 74.06(a) – Latin for “now for then.” Allows correction of mere clerical errors; cannot be used to add substantive relief that was never granted.

5. Conclusion

Cole v. KCSR cements a significant limitation on plaintiffs’ ability to sidestep comparative fault in FELA suits by invoking state safety rules. By embracing the Seventh Circuit’s reading of §§53 and 54a, the Missouri Supreme Court ensures uniform national treatment of state railroad regulations and preserves the railroad’s contributory-negligence defense unless a state rule dovetails with federal standards. The decision also underscores diligent protection of attorney-client privilege boundaries and reinforces strict jurisdictional time bars on post-judgment amendments. Litigants and trial courts alike must adapt: plaintiffs must tie safety rules to federal norms, corporate defendants must formalize witness representation, and judges must remember to set interest rates in the original judgment.