Dawson v. BNSF Ry. Co., No. 112,925

CourtCourt of Appeals of Kansas
Writing for the CourtPER CURIAM
PartiesCHARLES DAWSON, Appellee, v. BNSF RAILWAY COMPANY f/k/a BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Appellant.
Decision Date24 January 2020
Docket NumberNo. 112,925

CHARLES DAWSON, Appellee,
v.
BNSF RAILWAY COMPANY
f/k/a BURLINGTON NORTHERN AND
SANTA FE RAILWAY COMPANY, Appellant.

No. 112,925

COURT OF APPEALS OF THE STATE OF KANSAS

January 24, 2020


NOT DESIGNATED FOR PUBLICATION

MEMORANDUM OPINION

Appeal from Wyandotte District Court; DANIEL A. DUNCAN, judge. Opinion on remand filed January 21, 2020. Reversed and remanded.

Marianne M. Auld, pro hac vice, of Kelly Hart & Hallman LLP, of Fort Worth, Texas, Kenneth L. Weltz and Andrew J. Ricke, of Lathrop & Gage, LLP, of Overland Park, and Chad M. Knight, of Knight Nicastro, LLC, of Kansas City, Missouri, for appellant.

Steven L. Groves, of Groves Powers, LLC, of St. Louis, Missouri, Daniel J. Cohen, pro hac vice, of Law Offices of Daniel J. Cohen, of St. Louis, Missouri, and Davy C. Walker, of Law Offices of Davy C. Walker, of Kansas City, for appellee.

Before MCANANY, P.J., PIERRON and SCHROEDER, JJ.

PER CURIAM: Charles Dawson filed a claim under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 (2012) et seq., alleging his employer, BNSF Railway Company f/k/a Burlington Northern and Santa Fe Railway Company (BNSF), was negligent in the design and maintenance of its locomotives and tracks to such a degree it caused his back injuries. A jury returned a verdict in Dawson's favor. This court reversed, holding Dawson's claims were time-barred. Because this court found Dawson's

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claims untimely, it held BNSF's remaining arguments were moot and declined to address them. Our Supreme Court reversed this court's findings on the timeliness of Dawson's claims and remanded for consideration of BNSF's remaining arguments. Upon reconsideration of BNSF's claims, we find the closing argument by Dawson's counsel was improper because: (1) it contained numerous pleas to the biases, passions, and prejudices of the jury; (2) impermissibly commented on the credibility of witnesses and impugned the integrity of BNSF and its counsel; and (3) misstated the law. As such, we remand for a new trial with counsel instructed not to repeat those errors. With remand, we also find it necessary to address BNSF's other issue involving whether the Locomotive Inspection Act (LIA) and Federal Railway Safety Act (FRSA) preclude Dawson's FELA claims. They do not. Rather, we find both the LIA and FRSA are complimentary to FELA as they govern railroad safety. Based on this determination, we find it unnecessary to address BNSF's other two issues.

Reversed and remanded.

FACTS

Charles Dawson began working for BNSF in 1979. After a few months, he became a brakeman riding in the locomotives. Dawson left BNSF after approximately two years and spent the next six-and-a-half years working at a tire store. Dawson returned to BNSF in the late 1980s and again worked as a brakeman. In 1995, Dawson became a conductor and worked in that role until he had to retire due to his injuries. A detailed factual outline of Dawson's claims and injuries was described by our Supreme Court in its decision, and we see no need to repeat those facts here. See Dawson v. BNSF Railway Co., 309 Kan. 446, 447-50, 437 P.3d 929 (2019).

The case proceeded to trial. At the close of Dawson's case-in-chief, BNSF moved for a directed verdict (now called judgment as a matter of law) pursuant to K.S.A. 2014 Supp. 60-250(a), arguing, in part, Dawson's cumulative injury claim was time barred.

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BNSF also argued Dawson could not recover for his acute injury claims because they were precluded by the LIA, 49 U.S.C. § 20701 (2012) et seq., and FRSA, 49 U.S.C. § 20101 (2012) et seq., and Dawson had not proven BNSF's negligence. The district court denied this motion.

The jury found: (1) Dawson's cumulative injury claim was timely; (2) BNSF was negligent; and (3) BNSF's negligence caused Dawson's injuries. The jury awarded Dawson $3,110,000 in total damages. BNSF moved for judgment notwithstanding the verdict (now called judgment as a matter of law) pursuant to K.S.A. 2014 Supp. 60-250(b), or a new trial or alteration or amendment of the judgment pursuant to K.S.A. 2014 Supp. 60-259 based on the same arguments presented in its motion for directed verdict, along with some additional arguments not relevant to the issues discussed herein. The district court denied this motion.

BNSF timely appealed to this court, raising five issues. This court previously concluded Dawson's cumulative trauma and acute injury claims were time barred. Because this court found the timeliness of Dawson's claims was dispositive to the case, it did not decide the other issues BNSF raised in its brief. See Dawson v. BNSF Railway Co., No. 112,925, 2016 WL 3031224, at *1, 4-5 (Kan. App. 2016) (unpublished opinion).

Our Supreme Court reversed, finding the record—upon its deep dive, without specific citations to the record by Dawson—sufficient to support a finding Dawson's cumulative injury claim was timely and his acute injury claims were not untimely as a matter of law since they were a continuation of his cumulative injury claim. The matter was remanded to this court to consider the merits of BNSF's remaining issues. See Dawson, 309 Kan. at 459-60. On remand, we will now consider BNSF's four remaining claims:

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• Dawson's closing argument was sufficiently improper to require reversal for a new trial;

• Dawson's FELA claims for negligent track inspection, negligent maintenance, and defective seat design were precluded by the FRSA and LIA;

• Dawson failed to present sufficient evidence to establish a violation of the LIA; and

• The district court erred in admitting minutes from the Ft. Worth meeting, the Gambrell emails, and Mark Bullock's rebuttal testimony.

This court granted the parties' joint motion to consider the supplemental briefs filed in the Supreme Court and allowed another oral argument on October 24, 2019. Additional facts are set forth as necessary herein.

ANALYSIS

Dawson's closing arguments were improper.

BNSF argues it is entitled to a new trial based on Dawson's improper closing arguments. Specifically, BNSF contends Dawson improperly appealed to community values, asked the jury to place itself in Dawson's shoes, and "repeatedly impugned the honesty of both BNSF and its counsel." Dawson argues BNSF waived any claim of error and his argument was not improper. The parties agree this court reviews whether the trial court allowed improper closing argument for an abuse of discretion. See In re Care & Treatment of Ward, 35 Kan. App. 2d 356, 379, 131 P.3d 540 (2006). A judicial action constitutes an abuse of discretion if: (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P.3d 515 (2018). The party asserting the district court abused its

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discretion bears the burden of showing such abuse of discretion. Gannon v. State, 305 Kan. 850, 868, 390 P.3d 461 (2017).

Dawson's counsel and BNSF's counsel were no strangers to each other's trial tactics, having tried many cases against each other. As detailed below, Dawson's closing argument raises many concerns.

After thanking the jury, Dawson's counsel began his closing argument:

"You know, we don't often get a chance to make a real difference, but when you return a verdict as the jury in a civil case, that's your option to do that. And you make a difference not by finding for the plaintiff, not by finding for the defendant—"

BNSF objected, contending Dawson's counsel was "suggesting that this is somehow a civic responsibility to right wrongs in society as a result of this verdict." The district court overruled BNSF's objection. BNSF's only other objection occurred later, when Dawson improperly asked the members of the jury what they would pay not to feel pain from work.

Generally speaking, in a civil case, an objection is necessary to consider a claim of attorney misconduct. See Smith v. Blakely, Administrator, 213 Kan. 91, 95-96, 515 P.2d 1062 (1973). BNSF's counsel clearly anticipated Dawson's arguments. However, at the time of the objection, Dawson's counsel had not said anything improper and BNSF only made one other contemporaneous objection, which the district court sustained. Dawson argues BNSF waived any claims of error for the rest of his closing arguments. But in Smith, our Supreme Court held:

"We are cognizant of the rule that on appeal reversible error will not be considered when based on misconduct of counsel unless objection is made in trial court. We adhere to this rule; however, we point out that in the above cited cases the instances

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of impropriety were isolated and not of the nature disclosed by this record. It is apparent in this case that plaintiff's counsel's trial strategy was to try defendant's counsel rather than the issues. His efforts were not of an isolated nature but, to the contrary, permeated the whole of the trial from opening statement to final argument. . . .

"Under what circumstances do remarks of counsel result in reversible error? An uncontradictable answer must be: they are reversible error when, because of them, the parties have not had a fair trial. Factors necessary to a fair trial are an adequate hearing before an impartial tribunal based on legally admissible evidence relevant to the issues involved, free from bias or prejudice. [Citations omitted.]" 213 Kan. at 95-96.

In his closing arguments, Dawson's counsel violated the concept of an appropriate closing argument when he:

• Misstated the law regarding reasonableness;

• Commented on the credibility of witnesses;

• Impugned the honesty of BNSF's counsel;

• Accused BNSF of "buying" science in order to limit its liability;

• Argued the amount of damages awarded would show the conscience of the community; and

• Insinuated one of Dawson's witnesses would be retaliated against.

Collectively, these comments amount to reversible error, despite BNSF's failure to timely object, because they establish multiple acts by Dawson's counsel to deny BNSF a fair jury trial without...

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