Jan. 23, 2012 – A railroad carrier employee, injured while dodging a drunk driving trespasser in the employers’ railyard, recently secured his $1.2 million jury verdict in state appeals court by fending off a claim that a third party’s criminal act was not foreseeable by the railroad carrier.
The Federal Employers’ Liability Act (FELA), 42 U.S.C. sections 51-60, creates a negligence cause of action for employees injured or killed while working for railroad common carriers.
Bruce Dalka was working for common carrier Wisconsin Central Ltd. when a drunken Alberto Fernandez drove a stolen car into the railyard, which had no gate or access control. When the car veered towards him, Dalka jumped out of the way and tripped, sustaining injuries that later required five back surgeries. A jury awarded Dalka damages totaling approximately $1.2 million.
Wisconsin Central appealed on several grounds. Primarily, the employer argued that its summary judgment motion should have been granted because it could not have reasonably foreseen the harm Dalka suffered, as required to sustain a negligence claim.
But in Dalka v. Wisconsin Central, Ltd., 2011AP 398 (Jan. 18, 2012), the District I Wisconsin Court of Appeals clarified that Dalka’s evidence was enough to overcome a “significantly lighter” burden of showing the foreseeability of harm under FELA.
Quoting a 2001 Wisconsin case, appeals court Judge Kitty Brennan explained that “the standard for liability under FELA is low, and the plaintiff’s burden in a FELA action is ‘significantly lighter than it would be in an ordinary negligence case.’”
The appeals court rejected Wisconsin Central’s argument that Dalka did not present enough evidence to support a jury finding of foreseeability, relying on a U.S. Supreme Court case, Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108 (1963) and a case from the U.S. Court of Appeals for the Second Circuit, Syverson v. Consolidated Rail Corp., 19 F.3d 824 (2d. Cir. 1994).
Gallick involved a railroad employee who lost his legs to amputation after a disease-laden bug bit him near a stagnant pool of water on the carrier’s railyard grounds. In Syverson, a railroad employee was stabbed in his car while doing paperwork in a “remote” railyard area.
In both cases, the courts rejected the argument that the injury was not foreseeable, noting that the plaintiff was not required to prove similar harm had previously occurred.
“[T]he Court in Gallick specifically rejected the need to prove prior similar acts in a FELA negligence case and Syverson rejected any need to prove a prior criminal act with regard to a criminal attack from a third party,” Judge Brennan wrote.
The appeals court concluded that Dalka, “like the railroad employees in Gallick and Syverson, presented sufficient evidence “to create a genuine issue of material fact on whether the harm was foreseeable pursuant to FELA’s relaxed standard.”
In particular, Dalka presented evidence that Wisconsin Central did little to keep trespassers off the railyard grounds despite the employer’s knowledge that trespassing was problematic.
The appeals court rejected the argument that third-party criminal attacks are only foreseeable in two circumstances under FELA: 1) when the railyard is so fraught with danger so as to create a likelihood of criminal attack, and; 2) where similar prior incidents have occurred.
Thus, the court struck down several Wisconsin Central arguments that the trial court improperly instructed the jury on the foreseeability element.
It also rejected the argument that prior non-violent trespass evidence was inadmissible under Wis. Stat. section 904.04(2) (admissibility of other crimes, acts or wrongs). Wisconsin Central had argued that prior incidents of trespass were not similar to what occurred in this case.
