Cluck v. Union Pac. R.R. Co.

• Decision Date: 11 January 2011
• Docket Number: WD70792
• Parties: EDDIE CLUCK, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Respondent.
• Court: Missouri Court of Appeals

EDDIE CLUCK, Appellant,

v.UNION PACIFIC RAILROAD COMPANY, Respondent.

WD70792

Missouri Court of Appeals Western District

Filed: January 11, 2011

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY

The Honorable Ann Mesle, Judge

Before Division Four: Lisa White Hardwick, Chief Judge, Presiding,

Gary D. Witt, Judge and James Van Amburg, Special Judge

Eddie Cluck filed suit against his employer, Union Pacific Railroad Company, under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51, to recover damages for injuries he suffered when a co-worker's handgun discharged. The jury returned a verdict in favor of Union Pacific, and the circuit court entered judgment accordingly. On appeal, Cluck contends the court erred in instructing the jury, in failing to grant a directed verdict on the issue of liability, and in excluding the deposition testimony of a Union Pacific manager. Because we find instructional error, we reverse and remand for a new trial.

FACTUAL AND PROCEDURAL HISTORY

On January 13, 2004, Cluck, a locomotive engineer, and his fellow Union Pacific employees were transported to Coffeyville, Kansas, where they were to spend the night and then board a train they would crew the next day. Upon arrival at the hotel in Coffeyville, Cluck got out of the van and went to help unload the crew's luggage. He was carrying the bag of a co-worker, Larry Clark, when a handgun inside the bag discharged and a bullet struck Cluck's right knee.

In August 2004, Cluck filed a Petition against Union Pacific, seeking damages under FELA for his gunshot injuries. The petition alleged that Cluck's injuries resulted from Union Pacific's negligence in one or more of the following respects:

(a) Defendant failed to provide plaintiff with a reasonably safe place to work in that defendant, by and through its agents and employees, allowed a hand gun to [sic] brought on the defendant's property; and to be carried by an unauthorized employee while on company business;

(b) Defendant failed to provide plaintiff with a reasonably safe place to work in that defendant, by and through its agents and employees, allowed a hand gun to be loaded while on defendant's property and while on company business;

(c) Defendant failed to provide plaintiff with a reasonably safe place to work in that defendant's employee failed to properly secure the hand gun;

(d) Defendant failed to provide plaintiff with a reasonably safe place to work in that defendant failed [sic] warn plaintiff that a hand gun was present on the premises;(e) Defendant failed to provide plaintiff with a reasonably safe place to work in that defendant failed to properly supervise it's [sic] employees and agents;

(f) Defendant failed to provide plaintiff with a reasonably safe place to work in that defendant knew or reasonably should have known that defendant's employee was in possession of a hand gun and failed to correct the condition.

At trial, Clark testified that he placed the handgun in his luggage a week or two before the incident because he intended to sell it to a friend.¹ He loaded the weapon in order to show his friend that it was operational. After Clark was unable to "hook up" with his friend, he forgot the handgun was still in his bag. Clark did not tell his co-workers about the handgun, and none were aware that it was in his bag on the date of the incident.

Cluck presented evidence of Union Pacific's General Code of Operating Rules. The Code prohibits employees, other than railroad police, from possessing firearms while on duty and requires that violations be reported to supervisors. The Code also requires employees to maintain safe conditions and to warn co-workers of any danger.

At the close of evidence, Cluck and Union Pacific filed motions for directed verdicts. The court denied both motions.

During the conference on jury instructions, the court heard arguments as to whether the FELA negligence claim should be submitted under MAI 24.01 (A) for imputed liability or under MAI 24.01(B) for direct liability. Cluck submitted averdict director patterned on MAI 24.01 (A). Cluck argued that MAI 24.01 (A) is the proper instruction when the negligence is based on the acts of the railroad's employee, for which the railroad has imputed liability under FELA.

Union Pacific argued that if the negligence claim were submitted under MAI 24.01 (A), the pattern instruction would have to be modified to include the elements of respondeat superior that are essential to a FELA claim. The court agreed and requested Cluck to modify the instruction to address whether Clark's negligent acts were within the scope and course of his employment. Cluck drafted several instructions, but the court concluded that none properly addressed the objection raised by Union Pacific. The proposed instructions were refused.

Ultimately, over the objection of both parties, the court instructed the jury under MAI 24.01(B) by submitting the following verdict director on direct liability:

Your verdict must be for plaintiff if you believe:

First, conditions for work were not reasonably safe and defendant knew or by using ordinary care could have known of such conditions and that they were not reasonably safe, and

Second, with respect to such conditions for work, defendant failed to provide reasonably safe conditions for work, and

Third, defendant in any one or more respects submitted in Paragraph Second was negligent, and

Fourth, such negligence resulted in whole or in part in injury to plaintiff.

The jury returned a verdict in favor of Union Pacific. Cluck appeals the judgment entered by the court on the jury's verdict.

ANALYSIS

Jury Instructions

In his first point on appeal, Cluck contends the circuit court erred in refusing to submit a verdict director based on MAI 24.01 (A) for imputed liability. Cluck argues the instruction was mandatory because he presented substantial evidence that his injuries resulted from the negligent conduct of a co-employee, who was on duty and acting within the scope of his employment at the time the incident occurred.

The propriety of jury instructions is a matter of law subject to our de novo review. Closson v. Midwest Div. IRHC, LLC, 257 S.W.3d 619, 625 (Mo.App. 2008). Instructions "shall be given or refused by the court according to the law and the evidence in the case." Rule 70.02(a).² The trial court must instruct in compliance with the Missouri Approved Instructions (MAI) if one exists that is applicable to a particular claim. Closson, 257 S.W.3d at 625. The instructions "must be supported by substantial evidence, and we review the evidence and inferences in a light most favorable to the submission of the instruction, disregarding all contrary evidence and inferences." Id. (quoting Wright v. Barr, 62 S.W.3d 509, 526 (Mo.App. 2001) (internal quotations omitted). We will not reverse a jury verdict for instructional error, including the refusal to give an instruction, unless the error was prejudicial. Stancombe v. Davern, 298 S.W.3d 1, 7 (Mo.App. 2009) When FELA cases are filed in state court, they are subject to state procedural rules even though the substantive claim is governed by federal law. St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411 (1985). "[T]he form of the instructions and the manner in which the substantive law is submitted to the jury in FELA cases are procedural issues to be governed by state law." Hedgecorth v. Union Pac. R.R. Co., 210 S.W.3d 220, 227 (Mo.App. 2006). Because state courts are bound by federal law when adjudicating FELA cases, the parties are entitled to instructions only if they comport with federal substantive law of FELA. Kauzlarich v. Atchison, Topeka, & Santa Fe Ry. Co., 910 S.W.2d 254, 257 (Mo.banc 1995).

FELA provides that "[e]very common carrier by railroad while engaging in commerce... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce... for such injury resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." 45 U.S.C. § 51. Courts have liberally construed this provision to mean that a railroad may be held liable if the evidence shows that "employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506 (1957)(emphasis added); see also Coffey v. Ne. III. Reg'l Commuter R.R. Corp. (METRA), 479 F.3d 472, 476 (7th Cir. 2007).

To recover damages under FELA, a plaintiff must show that: (1) he was injured while in the scope of his employment; (2) his employment was in furtherance of his employer's interstate business; (3) his employer was negligent;and (4) the employer's negligence played some part in causing the injury for which he seeks compensation. See Green v. River Terminal Ry. Co., 763 F.2.d 805, 808 (6th Cir. 1985). "[R]easonable foreseeability of harm is an essential ingredient of Federal Employers' Liability negligence." Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 117 (1963).

Under FELA, the negligence of a co-employee is considered the same as the negligence of the employer. Mullahon v. Union Pac. R.R., 64 F.3d 1358, 1362 (9th Cir. 1995). Thus, a railroad "must answer for an employee's negligence as well as for that of an officer or agent." Boldt v. Pa. R.R.Co., 245 U.S. 441, 445 (1918). This vicarious or imputed liability extends to FELA employers under the traditional doctrine of respondeat superior. Sobieski v. Ispat Island, Inc., 413 F.3d 628, 631 (7th Cir. 2005). "Well established precedent applies the common law principle that an employer may be vicariously liable for its employee's negligence. committed within the course and scope of employment-that is, committed while furthering the employer's... business." Id. at 631-32. Under FELA, employers are liable for the negligence of their employees only if it occurs within the scope of employment, and no liability attaches when an employee acts "entirely upon his...