Hotaling v. Csx Transportation

• Decision Date: 25 March 2004
• Docket Number: 94356.
• Citation: Hotaling v. Csx Transportation, 5 AD3d 964, 773 NYS2d 755, 2004 NY Slip Op 2251 (N.Y. App. Div. 2004)
• Parties: BRIAN P. HOTALING, Respondent, v. CSX TRANSPORTATION, Appellant.
• Court: New York Supreme Court — Appellate Division

5 A.D.3d 964

773 N.Y.S.2d 755

2004 NY Slip Op 02251

BRIAN P. HOTALING, Respondent, v. CSX TRANSPORTATION, Appellant.

94356.

Appellate Division of the Supreme Court of the State of New York, Third Department.

March 25, 2004.

Appeals (1) from a judgment of the Supreme Court (Teresi, J.), entered January 3, 2003 in Albany County, upon a verdict rendered in favor of plaintiff, and (2) from an order of said court, entered February 13, 2003 in Albany County, which denied defendant's motion to set aside the verdict.

Kane, J.

Plaintiff was employed as a conductor in defendant's train yard. On March 20, 2001, plaintiff and an engineer were assigned to move an engine through the train yard. It is common for several trains to move simultaneously on parallel tracks, and plaintiff was aware that another engine pushing three cars was traveling on a track parallel to his train. Plaintiff rode his train with both feet on the bottom step of a ladder located on the side of the front of the engine, with both shoulders parallel to the ladder, looking in the direction that his train was moving. He rode in this manner so that as his engine approached a manual switch, he could safely stop the engine, disembark, throw the manual switch, then remount. According to Barbara Fosmire, defendant's yard master and plaintiff's immediate supervisor, plaintiff was performing his duties in the manner required by defendant and was positioned on the engine in the proper location.

To control and coordinate the movement of the trains, a tower conductor uses a control panel in the tower to electronically line and lock all train routes in the yard. Once a route is locked, it cannot be changed unless it is unlocked by the tower conductor, who has full control over the routes and movements of trains in the area controlled by electronic switches. After a route is lined and locked, the tower conductor gives the ground crew riding the train permission to move their train. The ground crew is not informed of each switch the train will pass through, nor does the crew choose its route. They are only informed of its destination. The tower conductor's grant of permission to move is relied upon as proof that the route is safely and properly lined and locked.

When plaintiff's engine reached one of the electronic switches, plaintiff noticed that the engine pushing three cars was headed for the same switch at the same time. Apparently, defendant's tower conductor had routed both trains into the same switch simultaneously. Plaintiff became aware of this impending collision only seconds before impact. He attempted to scramble up the ladder out of harm's way, but, unfortunately, could not do so in time. The other train caught plaintiff's leg and pulled him down into the core of the accident. Plaintiff's "left leg was virtually blown open from about the middle of his thigh down to his calf and he had no kneecap . . . [a]nd his right foot was pinned between the engine and the car that had hit him." Two emergency response teams arrived to assist in extracting plaintiff from the wreckage and treating his injuries. When rescuers attempted to free plaintiff's right foot by cutting the engine's grab iron with a torch, pieces of metal were scattered into his open wounds. In addition, the torch caught plaintiff's pants on fire and Fosmire had to throw snow on him to extinguish the flames. A crane was utilized to lift the car that collided with plaintiff's engine. That effort was halted when the car began slipping and plaintiff screamed that the shifting movement was "ripping his leg off." After an unsuccessful attempt to separate the car and engine with an airbag system, a hydraulic spreading tool was used to pry the trains apart and free plaintiff. Throughout the 1½ hours that it took to extricate plaintiff from the train wreck, plaintiff never lost consciousness and continuously screamed in agony, expressing fear that he was going to die. He was airlifted by helicopter to Albany Medical Center, where he remained for nearly two months.

During that period of hospitalization, plaintiff underwent 11 surgical procedures on his legs. These procedures included placement of hardware to set fractured bones, debridement to remove dead tissue, a leeching procedure to alleviate blood flow problems and skin grafts from both his right and left legs. Plaintiff was in constant pain, had difficulty sleeping and became increasingly discouraged. For the last surgery, plaintiff had to make a choice between two procedures. One required removing muscles from his back to place over his left knee, because the prior skin grafts were unsuccessful. Removing these muscles from his back would result in a permanent restriction in arm movement. There was no guarantee regarding the success of that procedure on his knee. After thoughtful deliberation, plaintiff selected the other option, an above-the-knee amputation of his left leg.

After the amputation, plaintiff continued to experience problems. He still had difficulty sleeping, was discouraged at his progress and now had phantom pain in his missing limb. His home had to be renovated for wheelchair accessibility. Wheelchairs had to be ordered specially because ordinary models could not accommodate plaintiff's large frame. Although he was fitted for a prosthetic leg, ambulating in it was difficult and frustrating. Injuries to the right ankle and foot made balancing and support problematic. In addition, his stump was covered with grafted skin. Grafted skin does not produce normal sensation and breaks down more quickly, causing sores and pain which limit his ability to ambulate with the prosthesis. As a result, he is mainly confined to a wheelchair.

Plaintiff was previously an athlete and outdoorsman. His baseball pitching abilities caught the attention of scouts for a professional baseball team. While stationed at Camp LeJeune, he was selected to participate on the All-Marine football team. At the time of the accident, plaintiff was 37 years old, married and the father of two young children. He still played softball and football and engaged in numerous outdoor activities with his family. Plaintiff built his own home next to his parents so he could care for them as they aged. After the accident but before trial, plaintiff's father became sick and passed away. Plaintiff's physical condition prevented him from rendering any assistance to his dying father. Because of his injuries and the resulting disabilities which drastically altered his way of life, plaintiff suffered from severe depression. He also suffered from posttraumatic stress disorder.

Plaintiff commenced this action pursuant to the federal Employers' Liability Act (see 45 USC § 51 et seq. [hereinafter FELA]). At trial, Supreme Court granted plaintiff's motion for a directed verdict on the issues of defendant's liability and the absence of contributory negligence. Regarding damages, the jury awarded plaintiff $6 million for past pain and suffering, $96,300 for past economic loss, $2 million for future pain and suffering, $1,118,000 for future economic loss and $1.5 million for future medical expenses, for a total of over $10.7 million. Defendant appeals from the judgment entered on the verdict and from the court's order denying its motion to set aside the verdict.

Supreme Court properly granted plaintiff's motion for a directed verdict based on plaintiff's lack of contributory negligence. Courts may grant directed verdicts where, based on the evidence presented and affording the nonmoving party every proper inference from that evidence, there is no rational process by which the jury could find for the nonmoving party (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Calafiore v Kiley, 303 AD2d 816, 816-817 [2003]). The standard for determining contributory negligence in FELA actions is considerably more liberal than at common law (see Swartout v Consolidated Rail Corp., 294 AD2d 785, 786 [2002]). Under FELA, a jury is entitled to find negligence if a party's actions "played any part, even the slightest, in producing the injury" (Rogers v Missouri Pac. R.R. Co., 352 US 500, 506 [1957]; see 45 USC §§ 51, 53; Curley v Consolidated Rail Corp., 81 NY2d 746, 747 [1992], cert denied 508 US 940 [1993]; Swartout v Consolidated Rail Corp., supra at 786; Ganotis v New York Cent. R.R. Co., 342 F2d 767, 768 [1965]; Keeton v Norfolk S. Corp., 49 F Supp 2d 590, 593 [1999]).

Defendant bore the burden of proving contributory negligence (see Paluch v Erie Lackawanna R.R. Co., 387 F2d 996, 999 [1968]). Defendant does not claim that plaintiff contributed to the collision, but instead attempts to show that plaintiff contributed to his injuries, first, by failing to select a safer position on the engine and, second, by failing to look around in order to discover danger. First, to satisfy its burden of showing contributory negligence "where alternate reasonable courses of action existed, the defendant needs to show that the plaintiff's actions were unreasonable" (Keeton v Norfolk S. Corp., supra at 593). Plaintiff and Fosmire testified that plaintiff's position on the engine was safe, proper and in accordance with defendant's rules, and that he was exactly where he was required to be. Although defendant established that it was possible for plaintiff to perform his duties from some other position, defendant failed to prove the unreasonableness of plaintiff's choice to assume a position that his supervisor deemed safe and proper.

Second, despite defendant's claims that plaintiff was contributorily negligent by failing to look around in order to discover danger, rather than continually looking in his direction of travel, plaintiff had no reason to be concerned about a train on a parallel track, particularly where he had already passed that train and encountered no hazards. "Certainly, it is not contributory negligence to fail to discover a danger when there is no reason to apprehend one" (Paluch v Erie...