NO. 89-350
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
RICHARD KALANICK,
Plaintiff and Respondent,
-vs-
BURLINGTON NORTHERN RAILROAD COMPANY,
A Delaware corporation,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial ist trick^,
-
7 1
In and for the County of Cascade, : c-
-
The Honorable Thomas McKittrick, Judge presidihg.
I I
"
C
c '-1
'21
COUNSEL OF RECORD:
For Appellant (s):
Curtis G. Thompson; Jardine Law Firm, Great Falls,
Montana
For Respondent (s):
Erik B. Thueson, Thueson Law Firm, Helena, Montana
Submitted on Briefs: Dec. 7, 1989
Filed:
* Clerk
Justice John C. Sheehy delivered the Opinion of the Court.
Burlington Northern b ail road Co. appeals from a judgment
entered in the District Court, Eighth Judicial ~istrict,Cascade
County, awarding Richard ~alanick $431,450. We affirm the District
Court.
The issues raised by Burlington Northern (B.N.) are:
1. Did the ~istrictCourt err in striking the defense of
contributory negligence and instructing the jury that Kalanick was
not negligent as a matter of law?
2. Did the trial court err by allowing evidence of a similar
injury to be admitted?
3. Did the trial court err by reading a portion of an
instruction it had previously denied?
4. id the trial court err by instructing the jury that the
injury to Kalanick need not be the result of a single incident, but
may arise gradually from the character of the work?
5. Were portions of Kalanickls closing arguments improper,
thereby prejudicing B.N.?
6. Did the trial court err in denying B.N.Is motion to alter
or amend the judgment?
In April of 1986, B.N. employees on the hi-line route were
informed that upper level management was soon to inspect the area.
A concerted effort to clean up the right-of-way of debris became
a priority job for hi-line employees. Roadmaster Ed Sherman was
responsible for the area between Loma and Ethridge. Sherman put
his section crews and inspection crews on clean-up detail, in
addition to their regular work.
Richard Kalanick and his partner were a two-man inspection
crew. They were told to pick up what debris they could manage
during their inspection patrol.
Kalanick and his partner patrolled the track from a rail-
mounted pickup truck known as a "high rail." Section crews were
given mechanical lifting equipment to accomplish the job of lifting
heavy debris such as old ties, but Kalanick and partner did not
have the benefit of such a device. Consequently, if they spotted
jobs requiring long periods of heavy labor, they reported them to
the roadmaster for section crew assignment.
Kalanick and his partner were assigned to a 46-mile rail
stretch known as the Gildford section. This section was full of
debris, including approximately 1,000 ties. Kalanick understood
that he and his partner were to clean up any debris which they
could manage. Kalanick and partner, due to the nature of the high-
rail truck and the lack of lifting equipment, necessarily had to
lift and carry the ties up and down the subgrades and load them on
the truck. Once loaded, they would drive to an area designated for
burning, and manually unload the ties. Kalanick estimated that he
and his partner loaded and unloaded some 900 ties prior to his
injury.
On April 23, 1986, after several hours of lifting ties,
Kalanick's back gave out.
Kalanick filed suit on August 28, 1987, alleging that B.N.
negligently failed to provide him with a safe place to work,
adequate instruction, reasonably safe equipment and adequate
manpower to perform the job safely. B.N. filed its answer, denying
the allegations and raising contributory negligence as a defense.
Jury trial commenced on December 12, 1989. At the close of
evidence, the trial court struck the defense of contributory
negligence, ruling it to actually be an assumption of risk defense,
precluded under the Federal Employers Liability Act. The jury
returned a verdict in favor of Kalanick in the amount of $431,450.
This appeal resulted.
B.N. contends that the defense of contributory negligence was
improperly stricken by the trial court. Kalanick maintained at
trial that B.N. was actually attempting to assert the defense of
assumption of risk, which is prohibited under the FELA. 45 U.S.C.
5 54 states in part:
In any action brought against any common carrier under
or by virtue of any of the provisions of this chapter to
recover damages for injuries to . . . any of its
employees, such employees shall not be held to have
assumed the risks of his employment in any case where
such injury .. . resulted in whole or in part from the
negligence of any of the officers, agents, or employees
of such carrier .. ..
While assumption of risk is prohibited, the defense of
contributory negligence has not been abolished in FELA actions.
McClain v. Charleston W. C. Ry. Co. (1939), 4 S.E.2d 280. The
question then becomes: what constitutes contributory negligence?
This has been a common problem in FELA cases. Most courts have
stated that assumed risk arises out of the employment contract,
while contributory negligence arises out of conduct. In Taylor v.
Burlington Northern R. Co. (9th Cir. 1986), 787 F.2d 1309, 1316,
1317, the court stated:
Although there is some overlap between assumption of risk
and contributory negligence, generally the two defenses
are not interchangeable. (Cite omitted.) At common law
an employee's voluntary, knowledgeable acceptance of a
dangerous condition that is necessary for him to perform
his duties constitutes an assumption of risk. (Cite
omitted.) Contributory negligence, in contrast, is a
careless act or omission on the plaintiff's part tending
to add new dangers to conditions that the employer
negligently created or permitted to exist.
The employee who enters the workplace for a routine
assignment in compliance with the orders and directions
of his employer or its supervising agents, who by such
entry incurs risks not extraordinary in scope, is not
contributorily negligent, but rather is engaging in an
assumption of risk.
* * *
Reporting to work or facing the risks inherent in one's
job is the essence of assumption of risk.
Following that reasoning, Kalanick asserts that his decision
to follow orders and load and unload ties rather than refuse to do
the work constitutes assumption of risk. Testimony of the
Roadmaster, Ed Sherman, Kalanickts supervisor, reveals that
Kalanick did the work expected of him, and as he was expected to
do it. In addition, the testimony of three B.N. foremen was of the
consensus that the assignment of heavy labor to two men with only
a high-rail pickup was nunreasonablelland with the
ultimate result that "somebody will wear out [and] get hurt."
Testimony of the B.N. employees refutes B.N.'s contentions of
an absence of negligence on its part. The FELA imposes a high
standard of care upon the carrier. Kernan v. American Dredging Co.
(1958), 355 U.S. 426, 439. There are duties imputed to the carrier
under the Act, including: The duty to provide a safe workplace,
Tiller v. Atlantic Coast R.R. (1943), 318 U.S. 54; the duty to
furnish employees with suitable equipment to enable the employee
to perform work safely, St. Louis Southwestern Ry. Co. v. Greene
(Tex. 1977), 552 S.W.2d 880, 884; the duty to provide sufficient
manpower to complete work in a reasonably safe manner, Blair v.
Baltimore & O.R. Co. (1945), 323 U.S. 600; and the duty to assign
workers to jobs for which they are qualified and to avoid placing
them in jobs beyond their physical capabilities, Fletcher v. Union
Pac. R.R. (8th Cir. 1980), 621 F.2d 902, 909, cert.denied 449 U.S.
1110. See generally Ackley v. Chicago and North Western Transp.
Co. (8th Cir. 1987), 820 F.2d 263.
The record is clear that B.N. did not assign to Kalanick any
lifting devices. Kalanick and his partner were expected to do
substantial lifting without mechanical aid. Roadmaster Sherman
testified that it was his responsibility to make sure that there
was sufficient manpower and equipment assigned so that men would
not get injured. The case law under the FELA amplifies that point.
Sherman knew he had a duty to protect his men. The District Court
weighed that fact against assertions by B.N. that Kalanick should
have availed himself of additional manpower or equipment, used
I1saferwlifting techniques or better discretion as to which items
he lifted. B.N. contended that Kalanick, by his own failings, was
contributorily negligent. The District Court, in light of 45
U.S.C. 5 54 and the multitude of cases interpreting it, correctly
dismissed B.N.Is contributory negligence defense. The court in its
ruling stated:
It seems to me that your factual arguments go to
assumption of the risk . ..
. There was testimony, very
clear testimony from the representatives of ~urlington
Northern that as far as they were concerned, Mr. Kalanick
didnlt stray from the ordinary course of his duties.
That he was performing his duties in a reasonable manner.
Specifically, the question [of whether Kalanick created
any new dangers for himself] was asked and answered.
Where is the evidence? I just don't see it. I was
listening very carefully for that very evidence that
would give youthat defense [of contributing negligence],
and I did not find it in this case.
The District Court, having viewed all the evidence, determined
that B.N. was attempting to interject assumption of risk, and
therefor properly disallowed the defense. To impute negligence to
~alanick through instruction to the jury when no contributory
negligence was shown would have been error. Because no
contributory negligence was shown, the court correctly instructed
the jury that Kalanick was not negligent a matter of law.I1
6
(Emphasis supplied.)
B.N. next contends that the trial court erred by allowing
evidence of a similar injury to be admitted. B.N. Section Foreman
Joe Stiffarm testified, and Roadmaster Ed Sherman verified, that
another man previously under Sherman's direction had injured his
back by lifting ties and had sued, alleging insufficient manpower
and inadequate lifting devices.
B.N. argues that the evidence was irrelevant, due to failure
to show the accident happened under similar circumstances.
This Court has stated that evidence of prior accidents is
admissible for the purpose of showing the existence of danger or
defect and notice thereof. Runkle v. Burlington Northern (1980),
188 Mont. 286, 613 P.2d 982. The accidents need not be identical
to be admissable. Tacke v. Vermeer Mfg. Co. (1986), 220 Mont. 1,
713 P.2d 527. Kalanick maintains that B.N. had notice of the prior
injuries and that Kalanick's injury was foreseeable in light of the
prior injuries. B.N. counters that the prior injury occurred six
years before ~alanick'sinjury, took place in the railroad yard on
flat surface, and involved a larger tie.
Both accidents involved a laborer, working under the same
foreman, lifting rail ties manually and thereby injuring his back.
For the purpose of showing the railroad was or should have been on
notice that workers may be injured and that such injuries are
foreseeable, the District Court properly allowed evidence to be
admitted to show the railroad's failure in the duty, under F E U ,
to "promulgate and enforce safety rules.'I Ybarra v. Burlington
Northern (8th Cir. 1982), 689 F.2d 147. In Young v. Illinois Cent.
Gulf R.R. Co. (5th Cir. 1980), 618 F.2d 332, 339, the court stated:
Admission of evidence of two recent prior accidents for
the sole purpose of showing that [the railroad] had
notice ... does not require a trial of the details and
circumstances of those prior accidents. It should be
considered by the jury for the purpose of determining
whether a reasonably prudent railroad with notice of
prior accidents . . . would have taken precautions
against future accidents . . ..
The District Court properly admitted evidence of the prior
injury. B.N. did not object to Foreman Stiffarm's testimony on the
grounds of hearsay, hence the objection was not preserved on
appeal. M.R.Evid. 103 (a)(1).
B.N. next contends that the trial court erred in reading a
portion of plaintiff's offered instruction that had been denied
earlier on the grounds of being argumentative.
Plaintiff's proposed instruction read:
The railroad has a continuing obligation to furnish
adequate manpower and equipment to perform the work
assignment in a reasonable and safe manner. Thus, the
railroad cannot escape its legal obligation to furnish
suitable equipment or adequate manpower by claiming that
adequate manpower or proper equipment was not available.
During the settlement of instructions, B.N. objected to the
second sentence of the instruction as being argumentative. The
trial court agreed and excised the second sentence, but later read
the entire instruction to the jury. B.N. claims that the language
of the second sentence imposed a bias upon the jury against B.N.'s
position at trial that all manpower and equipment was mobilized
during the cleanup campaign.
Under FELA, the railroad has a continuing obligation to
provide adequate manpower and equipment. The court in Ragsdell v.
Southern Pac. Transp. Co. (1982), 688 F.2d 1281, 1283, stated:
The duty is a "continuing onettand requires a jury to
weigh a myriad of factors -- including the nature of the
task, its hazards and efforts -- in determining whether
an employer furnished an employee with a reasonably safe
place to work . . ..
This continuous duty to provide a
safe place to work is broader than the general duty to
use reasonable care. Other courts in FELA actions have
held that failure to instruct a jury regarding an
employer's duty to provide a reasonably safe place to
work is reversible error.
Kalanick argues that the instruction is a correct statement
of law, that B.N. cannot pick and choose which workers to afford
adequate protection and at what time. If B.N. did not have the
manpower or equipment, Kalanick argues, it should not have assigned
him to the work. This Court has ruled in a FELA action, where the
plaintiff has submitted to the jury evidence tending to prove an
actionable violation of the Act, he is entitled to instruction
adaptable to his case. McGee v. Burlington Northern, Inc. (1977),
174 Mont. 466, 571 P.2d 784. Under McGee, the instruction was
proper.
B.N.Is next contention of error is over the following
instruction:
It is not necessary that the injury result from a single
incident. The term has been construed broadly to include
damage or harm to the physical structure of the body
which arises gradually from the character of the work.
B.N. objects to this instruction on the ground that it
tteliminates
the element of negligence." We do not agree. Under
Buell v. Atchison, Topeka & Santa Fe Ry. Co. (9th Cir. 1985), 771
F.2d 1320, cert. granted 476 U.S. 1103, affirmed in part, vacated
in part, and remanded on other grounds 480 U.S. 557, this is a
proper statement of the law. Further, the necessity of negligence
on the part of the carrier for the injury to be compensable was
properly set forth in accompanying instructions. This instruction
merely helped define the concept of injury. The ~istrictCourt
properly allowed the instruction. B.N. next contends that
~alanick'sclosing argument was improper and prejudicial.
B.N. takes issue with Kalanick's statement that B.N. had
previously injured another worker in the same manner and "then it
was business as usual and then Dick [Kalanick] loses his back. And
if we don't stop this, it's going to be business as usual in the
future . . .. B.N. states that this argument is improper where
punitive damages are not at issue.
However, it must be viewed in context. This statement was
made in rebuttal, following the railroad's argument that all
equipment and manpower was properly utilized elsewhere, and that
no negligence on the part of the railroad existed. Counsel for
Kalanick disagreed, and pointed out the foreseeability of the
accident due to the prior injury. Kalanick's counsel's next
utterance is that: "The railroad has to know they have to follow
the law. And if they don't follow the law, they have to compensate
the man fully for the injuries that he has. That's the only way
we can assure safety and compliance with the law.I1
Improper argument requires a reversal of a verdict only when
prejudice has resulted which prevents a fair trial. Nelson v.
Hartman (1982), 199 Mont. 295, 648 P.2d 1176. There is no showing
that the jury verdict was inflated in any way, suggesting part of
the award was exemplary. Counsel for Kalanick merely asked for
full compensation for his injuries. Where B.N. took the position
that it had done no wrong under the law, and would continue those
practices, Kalanick rightfully took issue with B.N.'s contentions.
B.N. also contends that Kalanickls statements that an award
of $200,000 would be against the law and violate the jurors' oaths
were improper. In closing, counsel for B.N. argued that Kalanickls
request for $345,000 for loss of future earnings was excessive, and
offered $200,000 as a fair and equitable amount. On rebuttal,
counsel for Kalanick argued:
Let me go over what it would do if you awarded Dick
Kalanick only $200,000. First of all, it would violate
the law because the law says he's entitled to
compensation, fair compensation according tothe evidence
for every one of his losses.
Secondly, it would violate the evidence, because the
uncontradicted evidence . ..is that Dick Kalanick at a
very minimum suffered $408,000 in economic losses alone.
~hirdly,it would violate your oath as jurors . to. .
award $200,000, because your oath is to follow the
evidence and the law.
As stated above, improper argument requires a reversal only
when prejudice is the result, affecting a fair trial. Nelson,
supra. Kalanick sought a minimum of $408,450 for loss of past and
future earnings, the subject of the above-quoted argument. The
jury, after hearing all arguments, awarded Kalanick $201,450 in
lost earnings, less than the amounts of $63,450 in past earning
loss plus $200,000 in future earning loss proposed by B.N. in
closing argument. In light of these figure, B.N.'s contention that
Kalanickvs argument resulted in prejudice has little merit.
B.N.Is final contention is that the trial court erred in
denying its motion to alter or amend the judgment.
B.N. seeks three different reductions in the judgment.
First, B.N. seeks to reduce the $48,000 reward for lost
services, due to its vvspeculativevv
nature. However, there was
testimony at trial, including that of B.N.'s own medical examiner,
which stated that Kalanick would not be able to safely lift more
than 20 pounds. Based on life expectancy, this award amounts to
approximately $1,200 per year for his inability to perform menial
physical tasks as would a healthy man. Ample evidence at trial
existed to support the award.
Further, the amount to be awarded in damages is properly left
to the jury, and this Court will not intervene where the award is
neither so grossly out of proportion to the injury as to shock the
conscience nor induce belief that it was the product of passion or
prejudice. Salvail v. Great Northern Ry (1970), 156 Mont. 12, 473
P.2d 549.
Secondly, B.N. seeks to reduce the jury award by $72,000, the
amount awarded Kalanick for future medical care.
In the three years prior to trial, Kalanick amassed medical
costs of $29,156. The medical opinion offered at trial was that
Kalanick would continue to need medical care for his injury, but
to a lesser degree. Using Kalanickvspredicted remaining lifetime
of 39 years, the jury's $72,000 award was reasonable. Where there
is strong evidence of damages, a defendant should not escape
liability because the amount of damages cannot be proved with
precision. Johnson v. Murray (1982), 201Mont. 495, 656 P.2d 170.
This Court will not disturb a damage award, particularly in a FELA
case, unless the award appears outrageously excessive. Grunenthal
v. Long Island R. Co. (1968), 393 U.S. 156.
Finally, B.N. contends that the trial court erred by not
crediting it with setoffs for wage advances and supplemental
sickness benefits paid to Kalanick following his injury.
B.N. advanced $11,025 to Kalanick prior to trial, pursuant to
agreement signed by Kalanick which provided:
I understand and agree that this money advanced me will
be deducted from any payment made by settlement or
compromise or otherwise due to me on account of said
injuries, no matter by whom payment is made.
~alanick admits B.N. Is entitlement to this setoff, and we
therefore reduce the judgment by $11,025.
B.N. also contends such a setoff is proper with regards to
supplemental sickness benefits of $7,693.27 paid to ~alanick.
These benefits were issued pursuant to the collective
bargaining agreement adopted by Kalanick's union. The agreement
provides in part:
. . . benefits paid under this Plan will be offset
against any right of recovery for loss of wages the
employee may have against the employing railroad . . ..
There is conflicting case law in regards to this matter. In
Anderson v. Burlington Northern (1985), 218 Mont. 456, 709 P.2d
641, this Court ruled on the same issue, containing the very same
language in the agreement. We held that the provision was void
under the FELA, 45 U.S.C. 5 55, which states:
Any contract, rule, regulation, or device whatsoever, the
purpose or intent of which shall be to enable any common
carrier to exempt itself from any liability created by
this chapter, shall to that extent be void: Provided,
that in any action brought against any such common
carrier under or by virtue of any of the provisions of
this chapter, such common carrier may set off therein any
sum it has contributed or paid to any insurance, relief
benefit, or indemnity that may have been paid to the
injured employee or the person entitled thereto on
account of the injury or death for which said action was
brought.
In Anderson, as here, the payments were made through the union
health and welfare agreement and were thereby exempt from setoff
because they were a collateral source.
While that would appear to be determinative of the issue, the
Ninth circuit decision in Folkestead v. Burlington Northern (9th
Cir. 1987), 813 F.2d 1377, ruling on the same clause, came to the
opposite conclusion.
This Court has stated that, while FELA actions may be filed
in either state or federal courts, the rights and obligations of
employees and employers as created by the Act are to be governed
by the decisions of the federal courts. State ex rel. Burlington
Northern v. District Court (1976), 169 Mont. 480, 548 P.2d 1390.
Accordingly, we determine that Folkestead takes preference over
Anderson, and B.N. Is claim for an offset for sickness payments made
to Kalanick in the sum of $7,693.27 is hereby granted.
Conversely, Kalanick contends that this Court should grant an
additur for the reasonable value of past medical costs, equalling
$29,156.16. Kalanick maintains that these costs were not awarded
due to error in the trial court's instructions.
This Court held in Fillbach v. Inland Construction Corp.
(1978), 178 Mont. 374, 584 P.2d 1274, that an appellee who did not
contest the amount awarded to him by cross appeal or did not except
to or move to amend findings of fact of the trial court could not
properly raise such questions in regard to amount of award for the
first time on appeal. Accordingly, Kalanick is barred from seeking
past medical costs here.
We Concur: k Justice