Althouse v. Union Pac. R.R. Co.
| Decision Date | 16 August 2022 |
| Docket Number | 3:19-cv-00551-LRH-WGC |
| Parties | CHRISTOPHER ALTHOUSE, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant. Stipulated Exhibit No. Stipulated Exhibit Description Party Offering Exhibit No. Exhibit Description Party Offering Non-Offering Party Objection(s) 59-99 Name Page/Line Party Against Whom Offered Name Page/Line Party Against Whom Offered Name Page/Line & Objections Names of Plaintiff's Witnesses Address of Plaintiff's Witnesses Addresses of Defendant's Witnesses |
| Court | U.S. District Court — District of Nevada |
CHRISTOPHER ALTHOUSE, Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.
No. 3:19-cv-00551-LRH-WGC
United States District Court, D. Nevada, Southern Division
August 16, 2022
JOINT PRETRIAL ORDER
LARRY R. HICKS UNITED STATES DISTRICT JUDGE
I.
This is a civil action for personal injuries incurred while Plaintiff CHRISTOPHER ALTHOUSE was acting within the course and scope of his employment as a truck driver with Defendant UNION PACIFIC RAILROAD COMPANY wherein Plaintiff seeks damages for 1) past and future medical costs; 2) past and future lost wages and benefits; 3) lost earning capacity; 4) past and future loss of enjoyment of life; 5) past and future pain and suffering; and 6) past and future mental anguish.
Plaintiff contends Defendant:
1. Failed in its duty to provide reasonably safe tools and equipment
2. Failed in its duty to warn employees of unsafe working conditions
3. Failed in its duty to warn employees of any unusual risks or dangers or unexpected hazards or departures from the general customs and practices of the railroad
4. Failed in its duty to inspect and maintain its property to ensure it is free of hazards
5. Failed in its duty to use reasonable care to provide a safe place to work.
6. Failed in its duty to promulgate and enforce safety rules and safe policies and procedures.
7. Failed in its duty to provide sufficient help to perform the assigned tasks.
8. Failed in its duty to comply with Defendants' own safety rules, policies and procedures as relates to the tasks workers are instructed to perform.
9. Failed to ensure workers are safe from harmful acts of others.
10. Failed in its duty to investigate, implement and institute reasonably safe methods and procedures for the inspection, maintenance, correction and repair of work sites and equipment, as well as other duties the breach of which may be revealed by discovery.
Defendant contends:
1. Defendant was not negligent as alleged by Plaintiff.
2. Defendant could not reasonably foresee the happening of the subject accident.
3. Plaintiff was negligent.
4. Some of Plaintiff's injuries are the result of pre-existing and/or chronic conditions.
5. Plaintiff failed to reasonably mitigate his damages.
II.
Statement of jurisdiction: The incident giving rise to this lawsuit occurred in the County of Lyon, State of Nevada. At all relevant times, Defendant was and now is a duly-organized and existing corporation doing business in the State of Nevada. At all relevant times, Defendant was and now is a common carrier by railroad in the County of Lyon, State of Nevada, and engaged in interstate commerce within the meaning of Federal Employers' Liability Act (“FELA”). Plaintiff brings this action against Defendant under the provisions of 45 U.S.C. §§51 to 60, et seq., of the FELA. Under the terms of the FELA, this Court has jurisdiction pursuant to 45 U.S.C. §56. (concurrent jurisdiction).
III.
The following facts are admitted by the parties and require no proof:
1. Defendant is a Delaware corporation authorized to do business in the State of Nevada.
2. Plaintiff is an individual residing in Fernley, Nevada.
3. At all relevant times, Plaintiff was employed by Defendant.
4. At all relevant times, Defendant is and was a common carrier by railroad in the County of Lyon, State of Nevada, and other counties and states.
5. At all relevant times, Defendant is and was engaged in interstate commerce within the meaning of FELA.
6. The herein Court has jurisdiction.
7. Venue is proper in this Court.
8. Plaintiff was employed as a truck driver by Defendant on December 13, 2018.
IV.
The following facts, though not admitted, will not be contested at trial by evidence to the contrary:
1. The incident giving rise to this lawsuit occurred in the County of Lyon, State of Nevada.
2. At all relevant times, Plaintiff's job duties were in furtherance of and/or directly or closely or substantially affected said interstate commerce within the meaning of FELA.
3. At all relevant times, Plaintiff was acting within the course and scope of his employment with Defendant.
4. On or about December 13, 2018, at Fernley, Nevada, between milepost 273 and 274 on the mainline, Plaintiff was employed as a truck driver by Defendant and was being utilized as a hydraulic saw operator cutting mainline rail in order to repair rail defects, which involved among other things cutting out old rail and replacing it with new rail. Work truck #59720 was parked on the access road.
V.
The following facts are the issues of fact to be tried and determined at trial:
1. At the time of the incident, was Plaintiff's back toward work truck #59720 in order to perform the assigned work?
2. At the time of the incident, did Defendant's employee, foreman A.J. McCoy (“McCoy”), fail to check the valves on the welding hoses on the left side of the truck in the closed cabinet when he went to the right side of work truck #59720 to turn on the tanks that were to be used for welding?
3. At the time of the incident, did foreman McCoy either fail to perform a “torch test” or fail to ensure a “torch test” was performed prior to operation of the welding torch?
4. At the time of the incident, did Defendant direct Plaintiff to utilize a hydraulic saw operator cutting mainline rail in order to repair rail defects?
5. At the time of the incident, did sparks from the hydraulic saw ignite the cabinet on the left side of work truck #59720 that was filled with gas to cause an explosion that blew the doors off the truck?
6. Did the force of the explosion cause the doors of work truck #59720 to land 60 feet away up the hill, break the saw and blow Plaintiff up and backward where he slammed down onto and between the rails covered in hydraulic fluid?
7. Did Plaintiff fail to utilize a spark shield prior to using the hydraulic saw to cut rail?
8. Did Plaintiff sustain or have aggravated the following injuries?
• Right arm, two broken bones;
• Severe pain and swelling in right arm;
• Puncture wounds on right wrist;
• Lower back injury with sciatic pain;
• Severe back bruising;
• Bilateral rib injury;
• Right knee injury and pain;
• Severe right leg pain, numbness, bruising and swelling;
• Severe bruising and pain to entire right side of body;
• Numbness in fingers and right hand;
• Injury to right thumb;
• Headaches;
• Constant ringing in the ears;
• Insomnia;
• Post-traumatic stress;
• Nightmares;
• Confusion;
• Dizziness; and
• Emotional distress, among other issues.
9. Did all of the foregoing necessitate Plaintiff receive ongoing medical treatment and physical therapy?
10. Have Plaintiff's life activities been limited as a result of the injuries sustained in the incident (including fishing; shooting; limitations on his right side, including his dominant right hand; walking; sitting; standing; showering; and sleeping)?
11. Did Plaintiff suffer from preexisting conditions and/or injuries to his back, neck, hip and mental health prior to the subject incident?
12. Did Plaintiff fail to mitigate his damages by failing to seek medical treatment and/or follow medical advice, by abusing prescription drug medication, by failing to cooperate with UPRR's policies and procedures and unnecessarily incurring medical expenses, and by failing to participate in vocational rehabilitation and return to gainful employment.
VI.
The following are the issues of law to be tried and determined at trial:
The parties do not agree on what the contested issues of law are in the case.
Plaintiff submits that the contested issues of law are:
1. Did Union Pacific fail to use reasonable care under the circumstances to provide its employees with a reasonably safe place to work and with reasonably safe and suitable tools, machinery, and appliances?
2. Could Union Pacific have reasonably foreseen that the particular condition could cause injury?
3. Was Union Pacific's negligence a cause, no matter how small, of Althouse's harm?
Defendant submits that the contested issues of law are:
1. Could UPRR have reasonably foreseen the happening of the subject accident in the absence of evidence of prior incidents? (Sears v. Southern Pacific Co. (9th Circuit 1963) 313 F.2d 498; Holbrook v. Norfolk Southern Railway Co. (7th Cir. 2005) 414 F.3d 739 (The railroad must have actual or constructive notice of the alleged dangerous condition); Perry v. Morgan Guaranty Trust Co. of New York (5th Cir. 1976) 528 F.2d 1378 (Jones Act case) (Absent evidence that in the exercise of reasonable care the employer had either the time or the opportunity to acquire knowledge of, or to correct, the dangerous condition, plaintiff cannot show negligence).)
2. Is UPRR entitled to an apportionment instruction consistent with Sauer v. Burlington Northern R.R., 106 F.3d 1490 (10th Cir. 1996)?
3. Is Plaintiff's failure to provide medical progress reports and submit medical expenses to UPRR a failure to mitigate his damages under the FELA?
VII.
(a) The following exhibits are stipulated into evidence in this case and may be so marked by the clerk:
Report of Personal Injury or Occupational Illness
Plaintiff and Defendant
Plaintiff's W-2s
Plaintiff and Defendant
Plaintiff's Photographs of Incident Scene
Plaintiff
Pictures of the Incident Scene marked as Exhibit 3 to Deposition of Plaintiff Christopher Althouse
Plaintiff
...
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