Bevacqua v. Union Pacific R. Co.

• Decision Date: 07 May 1998
• Docket Number: No. 96-582,96-582
• Citation: 1998 MT 120,960 P.2d 273
• Parties: Eugene F. BEVACQUA, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Respondent.
• Court: Montana Supreme Court

Page 273

960 P.2d 273

1998 MT 120

Eugene F. BEVACQUA, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Respondent.

No. 96-582.

Supreme Court of Montana.

Submitted on Briefs June 12, 1997.

Decided May 7, 1998.

Alexander (Zander) Blewett, III, Hoyt & Blewett, Great Falls, for Plaintiff and Appellant.

Ausey H. Robnett, III, Paine, Hamblen, Coffin, Brooke & Miller, Coeur D'Alene, ID; Dolphy O. Pohlman, Corette, Pohlman, Allen, Black & Carlson, Butte, for Defendant and Respondent.

NELSON, Justice.

¶1 Eugene F. Bevacqua (Bevacqua) filed a claim in the District Court for the Second Judicial District, Silver Bow County, against Union Pacific Railroad Company (UP) alleging that UP had negligently injured him on three occasions while he was employed by UP. A jury found UP partially liable and Bevacqua was awarded judgment in the amount of $320,000. The District Court denied UP's motion for a new trial, but granted its motion to amend the judgment, thereby reducing the judgment to $40,000. Bevacqua appeals from the District Court's order reducing the judgment and UP cross-appeals from the District Court's order denying UP's motion for a new trial. We affirm in part, reverse in part and reinstate the $320,000 verdict.

¶2 Bevacqua raised the following issue on appeal:

¶3 Whether the District Court erred in granting UP's motion to amend the judgment by reducing it from $320,000 to $40,000.

¶4 UP raised nine issues in its cross appeal; we consolidate and restate them as follows:

¶5 1. Whether the District Court erred in holding that UP was estopped from relying on the statute of limitations for the 1973 and 1980 claims.

¶6 2. Whether the District Court erred in instructing the jury that the physicians who examined Bevacqua were agents of UP.

¶7 3. Whether the District Court erred in concluding that the release and settlement agreements executed by the parties following the 1973 and 1980 incidents were invalid.

¶8 4. Whether the District Court erred in instructing the jury that a violation of the federal regulations applicable to locomotive noise emissions constitutes negligence per se.

¶9 5. Whether the District Court erred in denying UP's motion for judgment as a matter of law on the issue of foreseeability as to the negligence claim arising from the 1990 incident.

¶10 6. Whether the District Court erred in granting judgment as a matter of law in favor of Bevacqua on the issue of apportioning damages.

¶11 7. Whether the special verdict form submitted to the jury was inherently confusing and misleading.

Factual and Procedural Background

¶12 Bevacqua is a brakeman for UP in Spokane, Washington. He has worked for UP since March 30, 1973. On October 15, 1973, Bevacqua was injured attempting to release a hand brake on a boxcar. As he was descending the ladder of the car, his coat caught on a jagged piece of metal causing him to fall to the ground and injure his left knee. He was taken to a hospital in Kellog, Idaho. Bevacqua reported the injury to his immediate supervisor and submitted a written statement. UP directed him to see a Dr. Tousey. Bevacqua contended that UP did not give him a choice as to which doctor to see for his injury. Dr. Tousey examined Bevacqua's knee, advised him that he had a simple sprain with no permanent injury, and released him to return to work after only a week.

¶13 The pain in Bevacqua's knee went away after a month. He continued to perform his duties as a brakeman with UP, however, he noticed an occasional "popping" in his knee. On December 24, 1973, Henry Lorring, a UP claims agent, paid Bevacqua $850 and presented him with a release of all claims which Bevacqua signed. The release stated that it covered all claims "INCLUDING CLAIMS FOR INJURIES, IF ANY, WHICH ARE UNKNOWN TO ME AT THE PRESENT TIME...."

¶14 Bevacqua was required to present himself for a physical examination to various doctors recommended by UP every two or three years to insure that he was physically capable of performing his job. In 1975, UP directed Bevacqua to see Dr. Tousey again. Dr. Tousey examined Bevacqua and cleared him to work as a brakeman with no restrictions. In his report, Dr. Tousey did not mention the condition of Bevacqua's left knee. In 1978, UP directed Bevacqua to see Dr. Maxwell Kepl. Dr. Kepl examined Bevacqua and cleared him to return to his brakeman duties with no restrictions.

¶15 On March 31, 1980, Bevacqua was walking from the UP depot to the parking lot to take an evening meal break. The area was not lighted and, unbeknownst to Bevacqua, UP had stored a pile of blackened railroad ties next to the designated walkway. Bevacqua tripped over two of the ties that jutted out into the walkway causing him to re-injure his left knee. He immediately reported the incident to UP whereupon he was taken to the hospital emergency room for treatment. Bevacqua was directed to undergo a physical examination by Dr. Kepl before he could return to work. Dr. Kepl advised Bevacqua that he had a simple sprain and cleared him to return to work after one week.

¶16 After returning to work, Ray McDeid, another UP claims agent, told Bevacqua that his knee had healed. McDeid had Bevacqua sign another release and paid him $750. This release contained language identical to that of the 1973 release regarding unknown injuries. The pain from this injury subsided within a month, however, Bevacqua continued to have an occasional "popping" sensation in his knee. After this second injury, UP required Bevacqua to see Dr. R.E. Elston on July 13, 1981, November 1, 1983, September 10, 1984, and March 30, 1987. On each occasion, Dr. Elston determined that Bevacqua had no physical conditions which would restrict his work activities.

¶17 The third injury to Bevacqua's knee occurred on May 21, 1990. United States Customs officials at the United States-Canada border crossing in Eastport, Idaho had been complaining for a long period of time about the trains that were parked on the tracks near the customs' office. The engines were left idling due to the remoteness of the area and the possibility that the engines could not be restarted if shut down. Customs officials contended that the noise from the engines disrupted their business. UP failed to respond to the complaints and, on May 19, 1990, Customs Officer Keith Barnhart threatened UP with inspections if UP did not remedy the noise problem.

¶18 Two days later, on May 21, 1990, Barnhart inspected the train on which Bevacqua was working. When Barnhart requested that the crew produce their driver's licenses for identification purposes, Bevacqua was uncooperative. Barnhart lost his temper with Bevacqua and, in an effort to force Bevacqua to spread his legs so that Barnhart could frisk him, Barnhart kicked Bevacqua's left leg. This action caused Bevacqua's third injury to his left knee.

¶19 Bevacqua was sent by UP to Dr. Thomas Osten. After examining Bevacqua's knee, Dr. Osten referred him to Dr. Richard Treloar, an orthopedic surgeon in Spokane. Dr. Treloar's examination of Bevacqua's knee revealed that the anterior cruciate ligament (ACL), the primary stabilizer in the human knee, had ruptured. This rupture to the ACL caused significant stresses on the meniscus, the weight-bearing structures which cushion and stabilize the knee and act as shock absorbers. Both the lateral and the medial meniscus in Bevacqua's knee were severely torn. Dr. Treloar performed arthroscopic surgery in June 1990 to remove the torn meniscus and a second surgery in February 1991 to reconstruct the ruptured ACL.

¶20 Before permitting Bevacqua to return to work, UP required that he be examined by Dr. Paula Lantsberger. Dr. Lantsberger insisted that Bevacqua undergo extensive physical therapy before she would release him for work. Hence, in mid-March 1992, after completing his physical therapy, Bevacqua was permitted to return to work.

¶21 After the May 21, 1990 incident, Bevacqua filed a claim under the Federal Tort Claims Act (FTCA) against the federal government for battery based upon Barnhart's actions. Bevacqua lost this claim when the Ninth Circuit Court of Appeals held that Barnhart was immune from suit and that his conduct was privileged. However, during the FTCA proceeding, the government hired Dr. Peter Rork, an orthopedic surgeon from Jackson, Wyoming, to perform an independent medical examination of Bevacqua and testify as an expert witness. Dr. Rork testified that prior to the frisking incident, Bevacqua's left knee had a pre-existing condition comprised of a ruptured ACL and extensive tears in his medial and lateral meniscus. He further testified that the ACL was ruptured in the October 15, 1973 incident when Bevacqua fell from the boxcar and that the meniscus damage occurred in the March 31, 1980 incident when Bevacqua tripped over the railroad ties. Dr. Rork also testified that by 1990, Bevacqua had developed severe osteoarthritis in his left knee because of the first two injuries.

¶22 In February 1993, Bevacqua filed a claim against UP under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51--60, alleging that UP was liable for damages sustained to his knee in the May 1990 incident. Bevacqua amended his complaint in November 1995 to also allege claims against UP arising from the 1973 and 1980 incidents. Additionally, he alleged that the releases he had signed in 1973 and 1980 were invalid due to mutual mistake of fact and that UP should be estopped from asserting the statute of limitations as a defense. UP hired Dr. Rork to present the same testimony for UP that he had presented on behalf of the government in the FTCA action.

¶23 The case was tried to a jury August 12 through 16, 1996. UP did not call Dr. Rork to testify as it had planned, however, Bevacqua read Dr. Rork's deposition to the jury. In that deposition, Dr. Rork reiterated that the 1990 incident aggravated the injuries to Bevacqua's knee stemming from the 1973 and 1980 incidents.

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