Jordan v. Burlington Northern Santa Fe Railroad Company, No. W2007-00436-COA-R3-CV (Tenn. App. 1/15/2009)
| Decision Date | 15 January 2009 |
| Docket Number | No. W2007-00436-COA-R3-CV.,W2007-00436-COA-R3-CV. |
| Parties | THOMAS DAVID JORDAN v. BURLINGTON NORTHERN SANTA FE RAILROAD COMPANY, A Corporation, and NORFOLK SOUTHERN RAILWAY COMPANY, A Corporation |
| Court | Tennessee Court of Appeals |
Everett B. Gibson, S. Camille Reifers, Memphis, TN, for Appellant.
Robert M. Frey, Jackson, MS; Christopher A. Keith, Birmingham, AL; Stephen R. Leffler, Memphis, TN, for Appellee, Thomas David Jordan.
William C. Spencer, William C. Spencer, Jr., Memphis, TN, for Appellee BNSF Railway Company.
OPINION
This is an appeal from a jury trial involving the Federal Employers' Liability Act. A railroad employee was struck by a passing train belonging to another railroad. The employee sued both railroads, bringing a FELA claim against the employer railroad, and a negligence claim against the other railroad. The jury returned a verdict in the employee's favor against the employer railroad, finding that the employer railroad was 100 percent at fault. The employee was awarded damages in the amount of $4 million. We affirm in part and reverse in part.
Thomas David Jordan was an employee of Norfolk Southern Railway Company ("Norfolk Southern") for over thirty years. On November 13, 2002, Mr. Jordan was working as the conductor on a train traveling from Sheffield, Alabama to Memphis, Tennessee. The train arrived in South Memphis on a stretch of track called "Broadway." Broadway consists of six tracks running parallel alongside each other, but owned by several different railway companies. Mr. Jordan exited the Norfolk Southern train and began working on the ground uncoupling the Norfolk Southern train's locomotives from the lead car. Mr. Jordan was required to perform some of his duties between the Norfolk Southern track and an immediately adjacent track owned by Burlington Northern and Santa Fe Railway Company ("Burlington Northern"). At approximately 7:40 p.m., Mr. Jordan was struck by a passing Burlington Northern train, suffering major injuries.
Mr. Jordan brought suit against Norfolk Southern and Burlington Northern on July 28, 2003. Mr. Jordan sought damages in the amount of $2 million, but later the trial court allowed Mr. Jordan to increase his ad damnum clause to $4 million. Mr. Jordan brought suit against Norfolk Southern pursuant to the Federal Employers' Liability Act, 45 U.S.C.A. § 51.1 He claimed that his injuries. were caused by the negligence of Norfolk Southern's employees "or by reason of a defect or insufficiency due to the Defendant's negligence in its work practices, walk ways, safety practices, inspection practices, track clearance, operating practices, and trackage at the time and place where Plaintiff suffered his injuries." Mr. Jordan specifically claimed that Norfolk Southern failed to provide him a reasonably safe place to work by requiring him to work on the ground between the two tracks, despite knowledge that the width between the two tracks did not allow sufficient clearance for employees. Mr. Jordan's complaint also included a common law negligence claim against Burlington Northern. He alleged that Burlington Northern allowed its train crews to operate its train at unsafe speeds and without proper warnings to individuals working in the area, despite knowledge that there was not sufficient track clearance between the two tracks.
Burlington Northern filed a cross-claim against Norfolk Southern, contending that Norfolk Southern was contractually obligated to indemnify Burlington Northern for "any and all liability, costs, expenses or attorney's fees arising out of Plaintiff's claims against [Burlington Northern] .. ." This cross-claim arose from a "Letter Agreement" between the parties, dated November 5, 1999, which provided for indemnification in specified circumstances. Norfolk Southern filed a cross-claim against Burlington Northern, contending that Burlington Northern must indemnify it pursuant to the Letter Agreement. Alternatively, Norfolk Southern argued that the Letter Agreement was not applicable to the accident in question.
Norfolk Southern and Burlington Northern both filed motions for summary judgment as to the cross-claims, contending that the other party was responsible for indemnification. On July 8, 2005, the trial court held a hearing on these motions, and on February 9, 2007, the court denied and dismissed the respective motions. The order of dismissal incorporated the court's oral ruling. The trial court concluded that "each party will be obligated under the terms of the agreement and the language . . . to defend its own self and pay its own damages and cost of defense as is contemplated according to this [agreement]. . . .".
Trial commenced on January 17, 2006. The jury heard testimony from twenty-three witnesses. Mr. Jordan testified, but he did not remember the accident due to amnesia. The last thing he remembered from the day of the accident was being called into work when he was at his home in Alabama. The next thing he remembered was being in the hospital's trauma center approximately eleven to twelve days later. Mr. Jordan had suffered a significant trauma to the back of his head, which resulted in a laceration to his scalp and loss of consciousness. Mr. Jordan also suffered fractures at three different levels of his spine, which required the removal of bone from his hip area to be fused to the vertebra, in addition to the insertion of a metal rod and screws. Mr. Jordan had a fracture of his left tibia and fibula, or shin bones. Two screws were inserted just below his left knee, and another two screws were inserted above his ankle. Mr. Jordan had a fracture of the left scapula, or shoulder blade. He had an open wound on his right upper thigh area and a minor fracture in the upper part of the femur in the right hip. Mr. Jordan also suffered a lacerated spleen and collapsed lung. Mr. Jordan awoke with horizontal double vision, which his opthalmologist testified was due to abnormal eye alignment.
Upon his release from the hospital, Mr. Jordan relied on his wife to dress him, bathe him, and otherwise care for him. At trial, Mr. Jordan testified that he still had problems with his left ankle, lower leg, and knee, along with discomfort in his hips, lower back and shoulder. His orthopaedic surgeon testified that Mr. Jordan had developed traumatic arthritis from his injuries, and he would, more likely than not, need to undergo knee replacement surgery. The orthopaedic surgeon described the screws in Mr. Jordan's knee as "prominent," meaning one could touch the skin and feel the screws. He said the screws would be "very irritating" underneath the skin. Mr. Jordan said he takes Celebrex everyday in addition to six to eight Tylenol per day. Mr. Jordan's orthopaedic surgeon testified that Mr. Jordan would need to take an anti-inflammatory drug for his back pain indefinitely, along with possible epidural injections. Mr. Jordan testified that his vision was still slightly impaired, despite the addition of a prism into his glasses.
At the time of trial, Mr. Jordan had not returned to work. Norfolk Southern had contacted Mr. Jordan and invited him to apply for a different position with the railroad, but Mr. Jordan claimed that it was a "relief" position in which Mr. Jordan would only be working a few days per month. Norfolk Southern had reimbursed Mr. Jordan for the cost of taking computer classes at a local community college, but he had not yet obtained a degree or secured employment. An economist testified that Mr. Jordan's net income loss to date totaled $183,456. The present value of his future lost wages was $471,176, and the present value of his lost health insurance benefits totaled $111,677.
These figures regarding future losses were calculated based upon the assumption that Mr. Jordan could not return to work. The economist also estimated that Mr. Jordan's future medical costs would total $61,550. In summary, he calculated Mr. Jordan's total economic losses at $827,859.
The engineer who was working with Mr. Jordan on the Norfolk Southern train testified about the nature of the six-track area of Broadway and the duties Mr. Jordan was required to perform on the ground in order to uncouple the locomotives. The engineer testified that there is no signal communication at Broadway, and the different railroads do not communicate with one another, so there was no way for him or Mr. Jordan to know that the Burlington Northern train was approaching on the night of the accident. In addition, Mr. Jordan was required to wear ear plugs and safety goggles while performing his duties. The engineer testified that the stationary Norfolk Southern locomotive was noisy, but the approaching Burlington Northern locomotive would not have been as noisy if it was idling. The Burlington Northern engineer testified that his locomotive was likely in idle mode at the time of the accident. Witnesses also testified that it is very dark at Broadway at night, yet it was normal practice for a passing train to dim its headlight as a courtesy as it approached another train. The Burlington Northern engineer testified that on the night of the accident, he dimmed his train's headlight as it rounded the curve and he saw the Norfolk Southern train. The Norfolk Southern engineer testified that the Burlington Northern train did not have its headlight turned on until after the accident.
The Norfolk Southern engineer testified that Mr. Jordan was required to be between the Norfolk Southern and Burlington Northern tracks in order perform some of his duties, and he described the track...
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