Blake v. Consolidated Rail Corp.

• Decision Date: 05 June 1989
• Docket Number: Docket No. 101365
• Citation: 439 N.W.2d 914,176 Mich.App. 506
• Parties: Joan BLAKE, Personal Representative of the Estate of Robert Blake, Deceased, and Virginia Burton, Personal Representative of the Estate of Charles Burton, Deceased, Plaintiffs-Appellees-Cross-Appellants, v. CONSOLIDATED RAIL CORPORATION, a foreign corporation, and National Railroad Passenger Corporation, a foreign corporation, Defendants-Appellants-Cross-Appellees. 176 Mich.App. 506, 439 N.W.2d 914
• Court: Court of Appeal of Michigan — District of US

Page 914

439 N.W.2d 914

Joan BLAKE, Personal Representative of the Estate of Robert Blake, Deceased, and Virginia Burton, Personal Representative of the Estate of Charles Burton, Deceased Plaintiffs-Appellees-Cross-Appellants, v. CONSOLIDATED RAIL CORPORATION, a foreign corporation, and National Railroad Passenger Corporation, a foreign corporation Defendants-Appellants-Cross-Appellees.

Docket No. 101365.

176 Mich.App. 506, 439 N.W.2d 914

Court of Appeals of Michigan.

Submitted Jan. 6, 1989.

Decided April 18, 1989.

Released for Publication June 5, 1989.

[176 MICHAPP 509] Richard M. Goodman, P.C. by Richard M. Goodman, and Julie H. Hurwitz, P.C. by Julie H. Hurwitz and Thomas W. Stephens, Detroit, for plaintiffs-appellees-cross-appellants.

Durkin, McDonnell & Clifton by T. Patrick Durkin, Detroit, and Schnader, Harrison, Segal & Lewis by Ralph G. Wellington, Maida Rosenfeld Crane and Gayle Chatilo Sproul, Philadelphia, Pa., for defendants-appellants-cross-appellees.

Before J.H. GILLIS, P.J., and SHEPHERD and SAWYER, JJ.

PER CURIAM.

Defendants appeal, and plaintiffs cross-appeal, from a judgment of the circuit court entered in favor of plaintiffs and against defendant Consolidated Rail Corporation, also known as Conrail, in the amount of $4,500,000 on plaintiffs' claim under the Federal Employers' Liability Act, 45 U.S.C. Sec. 51 et seq., and of $4,400,000 against defendant National Railroad Passenger Corporation, also known as Amtrak, on plaintiffs' wrongful death claim on a theory of premises liability. We affirm.

This action arises from the December 31, 1978, murder of three railroad workers, Robert Blake, Charles Burton, and William Gulak, by Rudy Bladel. The three victims were employed by Conrail [176 MICHAPP 510] and the murders occurred at a depot in Jackson, Michigan, owned by Amtrak. These murders have resulted in a number of court opinions. With respect to the murder charges against Rudy Bladel, he was convicted in July, 1979, of three counts of first-degree murder and sentenced to life in prison. Bladel took an appeal to this Court, which affirmed. People v. Bladel, 106 Mich.App. 397, 308 N.W.2d 230 (1981). Bladel then filed an application for leave to appeal with the Michigan Supreme Court, which, in lieu of granting leave to appeal, remanded the matter to this Court for reconsideration in light of People v. Paintman, 412 Mich. 518, 315 N.W.2d 418 (1982). People v. Bladel, 413 Mich. 864, 317 N.W.2d 855 (1982). On remand, this Court concluded that it was compelled to reverse Bladel's conviction in light of Paintman, supra, which addressed the issue of violation of right to counsel in the context of an interrogation occurring after a defendant has requested the appointment of counsel. People v. Bladel (On Remand), 118 Mich.App. 498, 325 N.W.2d 421 (1982). Thereafter, the Michigan Supreme Court granted the prosecutor's application for leave to appeal and affirmed the reversal of Bladel's conviction, concluding that there had been an infringement on his right to counsel. People v. Bladel (After Remand), 421 Mich. 39, 365 N.W.2d 56 (1984). Thereafter, the United States Supreme Court granted certiorari to consider both Bladel and its companion case, People v. Jackson. Thereafter, the United States Supreme Court agreed with the conclusions of the Michigan Supreme Court and of this Court that Bladel's right to counsel had been infringed and affirmed the reversal of Bladel's conviction sub nom Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). Finally, we understand that Bladel was retried and again convicted of three counts of first-[176 MICHAPP 511] degree murder on June 19, 1987. It does not appear that Bladel appealed following those convictions.

Meanwhile, plaintiffs filed the instant action in Jackson Circuit Court on January 19, 1979. On May 24, 1982, the trial court granted summary judgment in favor of defendants pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8). Specifically, defendants had moved in limine to exclude all evidence at trial of any alleged activities of Rudy Bladel, criminal or otherwise, that occurred prior to the murders. This motion was granted by the trial court, which also sua sponte ruled that it would exclude the testimony of plaintiffs' expert witness who would testify that defendants could have foreseen the murders and as to what reasonable security measures defendants could have taken to prevent the murders.

On the day trial was to commence, plaintiffs moved for a stay of proceedings, so they could pursue an interlocutory appeal of the grant of the motion in limine, or for a dismissal without prejudice, presumably so they could seek the same appeal. The motions were denied. Thereafter, defendants moved for summary judgment and plaintiffs conceded that they could not present a prima facie case without the excluded evidence; accordingly, the trial court granted summary judgment. Plaintiffs then appealed to this Court, which concluded that the trial court had erred in concluding that plaintiffs had not alleged a legally cognizable duty owed by defendants to plaintiffs and in excluding in limine the evidence relevant to that duty and, therefore, reversed the grant of summary judgment. Blake v. Consolidated Rail Corp., 129 Mich.App. 535, 342 N.W.2d 599 (1983).

This Court described the excluded evidence, and the trial court's ruling, as follows:

[176 MICHAPP 512] "At the hearing on the motion in limine, plaintiffs' counsel argued that the evidence that defendants wished excluded went to the core of plaintiffs' theory that defendants knew of Rudy Bladel's violent propensities and vendetta against Conrail's Michigan branch employees. Proof of this knowledge was necessary to show that Bladel's assault against Blake and Burton was foreseeable by defendants.

"Included in the evidence plaintiffs intended to present were documents and testimony regarding Bladel's 1971 conviction for assault of a Michigan branch Conrail employee in Indiana and a federal weapons possession conviction in 1978, stemming from Bladel's purchase of a gun in Elkhart, Indiana. Besides these actual criminal convictions plaintiffs intended to introduce at trial evidence showing that defendants knew that Bladel was strongly suspected of the 1963, 1968, and 1976 murders of other Michigan branch Conrail employees in Hammond and Elkhart, Indiana. Plaintiffs also intended to present evidence that defendants had in their possession, or knew of, a threatening letter written by Bladel in 1977 to a Niles, Michigan, Conrail employee, outlining his vendetta against Michigan branch employees. Lastly, plaintiffs intended to introduce documents and testimony regarding defendants' knowledge of Bladel's trespasses on railroad property in Elkhart, Indiana, and Niles and Porter, Michigan.

"On February 18, 1982, the trial court filed its amended opinion granting defendants' motion in limine. In that opinion, the trial court stated that none of the evidentiary material outlined above involved events which occurred closer geographically than approximately 100 miles west of Jackson. The court said that:

" 'No case has been cited which would place upon an employer-defendant a duty to foresee danger to its employees from third persons, including ex-employees, at a location so remote from the site of the nearest previous incident indicating the possibility of danger to employees.'

[176 MICHAPP 513] "While the trial court noted that FELA case law recognized an employer's duty to warn employees about dangerous conditions or areas of employment, the court said defendants did not have a duty to warn or notify employees of a potentially dangerous person.

"In the same opinion granting defendants' motion in limine, the trial court sua sponte excluded the testimony of plaintiffs' expert witness, Jan Reber. According to Mr. Reber's affidavit, he was an expert and consultant in the area of security analysis for corporations engaged in industrial, transportation, and technological activities. He stated he had reviewed plaintiffs' discovery materials and, based upon the facts known to defendants, would express his opinion regarding the foreseeability of the Jackson murders and what reasonable security measures defendants could have taken to prevent those murders." Blake, supra, at 540-541, 342 N.W.2d 599.

Following this Court's reversal of the grant of summary judgment, plaintiffs successfully moved for a transfer of venue to the Wayne Circuit Court and the matter proceeded to trial, resulting in the aforementioned judgments in plaintiffs' favor.

Trial in the instant action lasted six weeks and it is neither necessary nor desirable to review the testimony in any great detail. Briefly, the evidence presented at trial generally established the points discussed in the above-quoted material concerning what plaintiffs had intended to establish at trial. That is, plaintiffs offered extensive evidence concerning the conduct of Rudy Bladel and the extent of the knowledge by Conrail and Amtrak concerning Bladel's vendetta against Michigan railroad workers and Bladel's involvement or suspected involvement in the prior killings or assaults on Michigan railroad workers and the actions or inactions taken by Conrail and Amtrak to protect its workers from Rudy Bladel.

[176 MICHAPP 514] Specifically, it was brought out that Bladel, who had been a longtime railroad worker, hated Michigan railroad workers because the Michigan workers came to work in Indiana, where Bladel lived, causing him to lose his relative seniority ranking with the railroad. Bladel had never specifically worked for Conrail or Amtrak, though he had worked for Penn Central, which was subsequently bought by Conrail after Bladel was fired.

The string of murders and assaults attributed to Bladel goes back to 1963, when two railroad workers, Ray Bottorf and Paul Overstreet, were murdered in Hammond, Indiana, where Bladel then lived. Although Bladel...