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Sanders v. Union Pacific Railroad Co.

Court of Appeals of Arkansas, Division III

September 18, 2019

THOMAS SANDERS APPELLANT
v.
UNION PACIFIC RAILROAD COMPANY APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION [NO. 60CV-12-585] HONORABLE MACKIE M. PIERCE, JUDGE.

          Lauck Law Firm, PA, by: Chester H. Lauck III; and Law Office of H. Chris Christy, PA, by: James R. Ferguson, for appellant.

          Friday, Eldredge & Clark, LLP, by: Joseph P. McKay, Martin A. Kasten, and Joshua C. Ashley, for appellee.

          MEREDITH B. SWITZER, JUDGE.

         Appellant Thomas Sanders sued his employer, appellee Union Pacific Railroad Company (Union Pacific), pursuant to the Federal Employers' Liability Act (FELA) for injuries he claims he sustained while he was working at Union Pacific's Jenks Shop, a locomotive-rebuild facility in North Little Rock, Arkansas. The case ultimately proceeded to a jury trial, and a Pulaski County Circuit Court jury returned a verdict in favor of Union Pacific. Sanders appeals raising several arguments in support of reversal. We affirm.

         I. Background

         Thomas Sanders was employed as a machinist at Union Pacific's Jenks Shop. He alleges that he was injured at work while he was testing an experimental device fabricated for use with a huck gun.

         A huck gun is used to assemble gear cases for locomotive-traction motors. When a huck gun is used, a threaded steel pin that is similar to a bolt is placed through holes in gear casings. Then an aluminum collar is placed over the threaded end of the pin. The collar and the pin are inserted into the huck gun, which uses hydraulic pressure to squeeze the collar onto the pin. Once the collar is secure, the jaws of the huck gun grab the pin and pull on it until it breaks off at a groove positioned near the end of the collar. The protective collar is required pursuant to the huck-gun manufacturer's instructions and warnings.

         Sanders's job duties required use of a huck gun. Before Sanders's incident, several employees had operated the huck gun without the use of the protective collar, which created a potentially dangerous scenario. When that happened, the pin would recoil when it broke and shoot across the shop floor in the opposite direction of the operator. As a result of this improper usage, several Union Pacific employees at the Jenks Shop, including Sanders, decided to develop a bracket that could be placed over the end of the pin to prevent it from shooting out in the event the collar was not attached.

         On the morning of October 27, 2010, Foreman General Raymond Burke and Safety Implementation Leader Gerry Billson took the experimental bracket to the shop floor, and Sanders tested the bracket by operating a huck gun without the protective collar in place. A few hours after the test, Sanders reported to Billson that he had injured himself.

         II. The Litigation

         Sanders sued Union Pacific alleging that he was ordered and directed by his supervisors to test the experimental bracket. Sanders further alleged that when he tested the bracket, the force of the huck bolt was transferred so that the huck gun recoiled and struck him, causing serious, disabling injuries to his neck, back, shoulder, inner ears, brain, and head.

         Union Pacific denied liability. It also raised the affirmative defense of contributory negligence. As the litigation progressed, Sanders filed a motion in limine, seeking to preclude Union Pacific from making any argument that he assumed the risk related to the testing of the bracket for the huck gun because assumption of risk is not an available defense in a FELA case. Union Pacific responded to the motion in limine, asserting that it had no intention of arguing assumption of risk but that it was entitled to argue that Sanders was contributorily negligent, and it intended to do so. The circuit court did not rule on Sanders's motion in limine, and throughout the litigation, the parties continued to dispute whether Union Pacific was improperly arguing assumption of risk disguised as contributory negligence.

         Union Pacific filed its own motion in limine. In it, Union Pacific requested that the circuit court exclude evidence relating to a mechanical alert issued by Union Pacific manager Gene Delahunt one week after the incident. Its motion was based on Arkansas Rule of Evidence 407, which governs subsequent remedial measures. The alert was designated as a safety alert, and it included a description of corrective action taken after Sanders's alleged injury. The circuit court took the matter under advisement at a pretrial hearing. Ultimately, the circuit court refused to allow the introduction of the mechanical alert into evidence.

         A jury trial was held on September 6, 7, 8, 11, and 12, 2017. Facts relating to how Sanders came to test the bracket were disputed at trial. Sanders and James Brian Kelley testified that Raymond Burke and Gerry Billson instructed Sanders to test the bracket. Alternatively, Billson testified that it was Sanders's idea to test the bracket with Sanders stating that "we won't know [whether it works] until we try." Additionally, the cause and extent of Sanders's alleged injuries were sharply disputed. Sanders alleged that the recoil of the gun was so severe that it caused him to stumble and lose his hard hat and glasses. By contrast, other witnesses claimed that Sanders showed no immediate signs of physical injury when he tested the bracket. Witnesses also testified that the recoil of the huck gun was less than that of a twelve-gauge shotgun and that Sanders had used an improper stance when he tested the bracket, which Union Pacific claims caused any injuries Sanders may have sustained.

         When it came time to prepare the jury instructions, the parties disagreed on the use of instructions relating to assumption of risk and contributory negligence. Sanders presented an assumption-of-risk instruction that Union Pacific opposed. Union Pacific presented contributory-negligence instructions that Sanders opposed. The circuit court ultimately declined to instruct the jury using the assumption-of-risk instruction proposed by Sanders, and it instructed the jury using the contributory-negligence instructions offered by Union Pacific.

         Following deliberations, the jury returned a verdict in favor of Union Pacific, finding that it was not liable for Sanders's alleged injuries. The verdict was reduced to judgment, and Sanders's complaint was dismissed with prejudice.

         Thereafter, Sanders filed a motion for new trial pursuant to Arkansas Rule of Civil Procedure 59(a)(1), (6), and (8). In his motion, Sanders argued that the circuit court committed prejudicial error by refusing an assumption-of-risk instruction, allowing contributory-negligence instructions, and excluding evidence relating to the mechanical alert issued after Sanders's incident. Sanders also argued that the jury's findings were against the weight of the evidence. Union Pacific responded and objected to the motion for new trial. The circuit court did not rule on the motion, and it was deemed denied after thirty days.

         Sanders timely appealed from the judgment and the denial of his motion for new trial. In this appeal, Sanders seeks reversal on several bases. He contends that the judgment should be reversed because the circuit court erred by (1) refusing to instruct the jury on assumption of risk; (2) instructing the jury on contributory negligence; and (3) sustaining Union Pacific's objections to the introduction of the mechanical alert. Sanders also argues that the jury's verdict was clearly against the weight of the evidence and that the circuit court erred by refusing to grant his motion for new trial.

         III. The FELA

         This lawsuit is governed by the FELA, an act that governs the liability of a railroad in all work-related injuries. Pursuant to this act, a railroad has a duty to provide its employees with a reasonably safe place to work at all times. Ellis v. Union Pac. R.R. Co., 329 U.S. 649 (1947). The FELA prohibits any attempt by a defendant to assert an assumption-of-risk defense. See 45 U.S.C. § 54 (2009). In any action brought under the FELA to recover damages for injuries to any employee, "such employee 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 the carrier." Id. However, an employer defending a FELA claim has a right to argue that a plaintiff was contributorily negligent if there is evidence to support it. See, e.g., Ackley v. Chicago & N.W. Transp. Co., 820 F.2d 263, 268 (8th Cir. 1987).

         A principal issue raised on appeal is whether Union Pacific made an improper assumption-of-risk argument to the jury under the guise of its being a contributory-negligence argument. The distinction between the two legal concepts can be nebulous. Assumption of risk is defined as a person voluntarily exposing himself to a dangerous situation inconsistent with his safety, knowing of the danger and risk of injury from it. See AMI Civ. 306 (2018); Capps v. McCarley & Co., 260 Ark. 839, 544 S.W.2d 850 (1976). Contributory negligence is defined as a careless act or omission on a plaintiff's part tending to add new dangers to conditions that the employer created or permitted to exist. Paul v. Mo. Pac. R.R. Co., 963 F.2d 1058 (1992). A primary distinction between the two theories is that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of conduct of the reasonable person. "Knowledge of the risk is the watchword of assumption of risk." William L. Prosser & Page Keeton, Prosser and Keeton on the Law of Torts § 68 (5th ed. 1984).

         IV. The Assumption-of-Risk Instruction

         Sanders sought to have the jury instructed that assumption of risk was not an available defense in this case. Sanders claimed he was entitled to this instruction because Union Pacific improperly defended the case against it by presenting evidence ...


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