Callihan v. Burlington Northern Inc., 82-182

• Decision Date: 29 December 1982
• Docket Number: No. 82-182,82-182
• Citation: 39 St.Rep. 2158,201 Mont. 350,654 P.2d 972
• Parties: Robert W. CALLIHAN, Plaintiff and Respondent, v. BURLINGTON NORTHERN INC., Defendant and Appellant.
• Court: Montana Supreme Court

Page 972

654 P.2d 972

201 Mont. 350

Robert W. CALLIHAN, Plaintiff and Respondent, v. BURLINGTON NORTHERN INC., Defendant and Appellant.

No. 82-182.

Supreme Court of Montana.

Submitted on Briefs Sept. 16, 1982.

Decided Dec. 6, 1982.

Rehearing Denied Dec. 29, 1982.

K. Kent Koolen, Billings, Corette, Smith, Pohlman & Allen, Butte, for defendant and appellant.

John C. Hoyt, Great Falls, for plaintiff and respondent.

MORRISON, Justice.

Burlington Northern appeals a judgment in the amount of $1,031,029.00 awarded plaintiff, Robert W. Callihan, for personal injuries suffered in an accident March 25, 1978. A motion for new trial was made and denied. This appeal followed.

On March 25, 1978, Callihan was an engineer on a Burlington Northern locomotive. The back of the seat, in which he was sitting, broke, causing him to fall backwards. By the end of the trip, Callihan was suffering severe back pain. He made six more trips as engineer prior to ceasing work April 9, 1978, due to unbearable back pain.

Callihan had suffered two previous back injuries while working for Burlington Northern, both resulting in settlements between Callihan and Burlington Northern. In 1954, a train on which Callihan was riding made an emergency stop, throwing him from a bunk. About a year later, he had back surgery. A laminectomy was performed and vertebrae in his lower back were fused. Following the surgery, Callihan returned to his regular employment and his normal recreational activities--hunting, horseback riding, dancing, lawn work, carpentry, remodeling and painting. He also began playing golf and became quite accomplished.

In 1971, Callihan slipped and fell on ice outside the train depot in Troy, Montana. He continued regular employment until 1973, when a second back operation was performed. The operation consisted of another laminectomy and the fusion of vertebrae immediately above the first fusion.

Following the second operation, Callihan again returned to his regular, full-time employment. His preaccident activities were not restricted. However, he took Tylenol 3 regularly, as well as Valium in the evening for sleeping purposes.

After open heart surgery in 1977, three doctors pronounced Callihan to be in good health and able to return to work without restriction. Later in 1977, after a mandatory physical, a railroad doctor reported that Callihan had passed with "flying colors."

Apparently, Callihan then remained in good health until suffering his third back injury on March 25, 1978. The resulting pain was so severe, he ceased working and sought relief from many different doctors and procedures. From April 10, 1978, until the commencement of this suit on August 28, 1980, Callihan had three myelograms, two laminectomies, five nerve blocks, four rhizotomies and a partial rhizotomy, for a total of seven operations. He also visited a chiropractor and an acupuncturist, to no avail.

The myelograms failed to disclose the cause of pain. The laminectomies only temporarily lessened the pain. Therefore, the rhizotomies (severance of nerves) were performed. Callihan's left leg is nearly useless as a result of the rhizotomies. However, the pain remains excruciating.

Callihan now spends ninety percent of his time lying on his right side on the sofa with a pillow between his legs to relieve the pressure on his left leg. Sitting in a chair to eat dinner is a major, energy-draining task. He is unable to enjoy any of his previously discussed physical activities. The operations have left him impotent. Mrs. Callihan must be present to assist him twenty-four hours a day. Tylenol 4, Percodan and Valium allow Callihan to sleep.

Dr. Herman Walters, Director of the Clinical Psychology Department at the University of Montana, examined plaintiff. He testified at trial that Callihan suffers significant reactive depression; that he does not enjoy life; that he is sad and very pessimistic about the future. Although it has since passed, he at one time had suicidal tendencies caused by his condition. Walters testified that Callihan's depression would not improve until his physical condition improved. Dr. Albi, Callihan's treating physician, stated, "I can only repeat that this man is totally beyond any rehabilitation physically..." Callihan's physical and emotional future is bleak.

Joseph Kasperick is an assistant economics professor at Montana College of Mineral Science and Technology in Butte. He prepared an appraisal estimating the value in present dollars of Callihan's earnings to age sixty-five to be $271,828.39, had he not been injured in 1978. Kasperick also estimated the lost value in present dollars of Callihan's household services to be $44,309.04, making the total of lost earnings and services $316,137.43. Assuming the jury adopted Kasperick's figures in determining Callihan's total award of $1,031,029.00, they then awarded Callihan approximately $715,000.00 for pain, suffering and loss of his established course of life.

Burlington Northern presented no direct evidence contradicting the above synopsis of plaintiff's case. Instead, defendant attempted to present its case through the cross-examination of plaintiff's witnesses. Callihan's doctors admitted on cross-examination that prior back injuries contributed to Callihan's present condition. However, no one was able to specifically apportion the various injuries.

In appealing the jury verdict and judgment in favor of plaintiff, defendant presents the following issues for our consideration:

(1) Did the District Court err in granting plaintiff's motion for partial summary judgment on the issue of liability under the Safety Appliance Act without then considering proximate cause?

(2) Did the District Court err in granting plaintiff's motion in limine to exclude prior settlements of two prior injuries to plaintiff's back?

(3) Did the District Court err in overruling defendant's objections to Instruction No. 17 and Instruction No. 18?

(4) Was the jury verdict of $1,031,029.00 the result of passion and prejudice?

On cross appeal, plaintiff requests we consider the following issues:

(1) Whether the District Court erred in denying plaintiff's motion for an order awarding prejudgment interest at the rate of ten percent per annum to run from the date of plaintiff's injury because of defendant's abuse of the judicial process?

(2) Whether this Court should grant Rule 32 sanctions for filing of a frivolous appeal for purposes of delay?

We affirm the jury verdict and judgment for plaintiff and deny plaintiff's requests for prejudgment interest and Rule 32 sanctions.

Plaintiff's action is based upon violation by defendant of federal statutes known as the Boiler Inspection Act, 45 U.S.C. Secs. 23-34 (a portion of the Safety Appliance Act) and the Federal Employers' Liability Act, 45 U.S.C. Secs. 51 et seq. Specifically, 45 U.S.C. Sec. 23 provides:

"It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate ... that the same may be employed in the active service of such carrier without unnecessary peril to life or limb..."

This section imposes absolute liability upon any carrier which violates it. Lilly v. Grand Trunk Western R. Co. (1943), 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411.

On the basis of this statute and the uncontested fact that the seat in which plaintiff, Callihan, was sitting broke because of improper welding, plaintiff moved for partial summary judgment against defendant on the issue of liability, pursuant to Rule 56(c), M.R.Civ.P. The motion was granted by order September 10, 1981, following a hearing on the issues.

Defendant now objects to that order, stating that the District Court improperly failed to consider whether the absolute liability resulting from defendant's violation of the section, was the proximate cause of plaintiff's injuries. In McGee v. Burlington Northern, Inc. (1977), 174 Mont. 466, 476, 571 P.2d 784, 790, we held: "... recovery for a FSAA violation is predicated upon a showing of: (1) A violation of the Act, and (2) injury proximately caused thereby." The order granting summary judgment pertains solely to part (1), Burlington Northern's violation of 45 U.S.C. Sec. 23 and the attendant absolute liability imposed. It is affirmed.

It remained a function of the jury to determine whether that violation proximately caused plaintiff's injuries. The jury was so instructed. Jury Instructions Nos. 8, 9, and 10, adequately define "proximate cause" and clearly limit any award of damages to damages for injuries proximately caused by the March 25, 1978, accident.

The District Court issued a pretrial order January 5, 1982, which, among other things, granted plaintiff's motion in limine to exclude evidence relating to plaintiff's previous settlement of claims with Burlington Northern. Plaintiff contends such evidence is irrelevant to the issue before the jury. Defendant contends that since the jury heard evidence regarding those previous injuries, it should also know of the settlement of the claims resulting from those injuries.

Rule 401, Mont.R.Evid., provides in part:

"Relevant evidence means evidence having any tendency to make...