Kalanick v. Burlington Northern R. Co.

• Decision Date: 29 March 1990
• Docket Number: No. 89-350,89-350
• Citation: 242 Mont. 45,788 P.2d 901
• Parties: Richard KALANICK, Plaintiff and Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, A Delaware corporation, Defendant and Appellant.
• Court: Montana Supreme Court

Page 901

788 P.2d 901

242 Mont. 45

Richard KALANICK, Plaintiff and Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, A Delaware corporation, Defendant and Appellant.

No. 89-350.

Supreme Court of Montana.

Submitted on Briefs Dec. 7, 1989.

Decided March 9, 1990.

Rehearing Denied March 29, 1990.

Curtis G. Thompson, Jardine Law Firm, Great Falls, for defendant and appellant.

Erik B. Thueson, Thueson Law Firm, Helena, for plaintiff and respondent.

SHEEHY, Justice.

Burlington Northern Railroad Co. appeals from a judgment entered in the District Court, Eighth Judicial District, Cascade County, awarding Richard Kalanick $431,450. We affirm the District Court.

The issues raised by Burlington Northern (B.N.) are:

1. Did the District Court err in striking the defense of contributory negligence and instructing the jury that Kalanick was not negligent as a matter of law?

2. Did the trial court err by allowing evidence of a similar injury to be admitted?

3. Did the trial court err by reading a portion of an instruction it had previously denied?

4. Did the trial court err by instructing the jury that the injury to Kalanick need not be the result of a single incident, but may arise gradually from the character of the work?

5. Were portions of Kalanick's closing arguments improper, thereby prejudicing B.N.?

6. Did the trial court err in denying B.N.'s motion to alter or amend the judgment?

In April of 1986, B.N. employees on the hi-line route were informed that upper level management was soon to inspect the area. A concerted effort to clean up the right-of-way of debris became a priority job for hi-line employees. Roadmaster Ed Sherman was responsible for the area between Loma and Ethridge. Sherman put his section crews and inspection crews on clean-up detail, in addition to their regular work.

Richard Kalanick and his partner were a two-man inspection crew. They were told to pick up what debris they could manage during their inspection patrol.

Kalanick and his partner patrolled the track from a rail-mounted pickup truck known as a "high rail." Section crews were given mechanical lifting equipment to accomplish the job of lifting heavy debris such as old ties, but Kalanick and partner did not have the benefit of such a device. Consequently, if they spotted jobs requiring long periods of heavy labor, they reported them to the roadmaster for section crew assignment.

Kalanick and his partner were assigned to a 46-mile rail stretch known as the Gildford section. This section was full of debris, including approximately 1,000 ties. Kalanick understood that he and his partner were to clean up any debris which they could manage. Kalanick and partner, due to the nature of the high-rail truck and the lack of lifting equipment, necessarily had to lift and carry the ties up and down the subgrades and load them on the truck. Once loaded, they would drive to an area designated for burning, and manually unload the ties. Kalanick estimated that he and his partner loaded and unloaded some 900 ties prior to his injury.

On April 23, 1986, after several hours of lifting ties, Kalanick's back gave out.

Kalanick filed suit on August 28, 1987, alleging that B.N. negligently failed to provide him with a safe place to work, adequate instruction, reasonably safe equipment and adequate manpower to perform the job safely. B.N. filed its answer, denying the allegations and raising contributory negligence as a defense.

Jury trial commenced on December 12, 1989. At the close of evidence, the trial court struck the defense of contributory negligence, ruling it to actually be an assumption of risk defense, precluded under the Federal Employers' Liability Act. The jury returned a verdict in favor of Kalanick in the amount of $431,450. This appeal resulted.

B.N. contends that the defense of contributory negligence was improperly stricken by the trial court. Kalanick maintained at trial that B.N. was actually attempting to assert the defense of assumption of risk, which is prohibited under the FELA. 45 U.S.C. Sec. 54 states in part:

In any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to ... any of its employees, such employees shall not be held to have assumed the risks of his employment in any case where such injury ... resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier....

While assumption of risk is prohibited, the defense of contributory negligence has not been abolished in FELA actions. McClain v. Charleston & W.C. Ry. Co. (1939), 191 S.C. 332, 4 S.E.2d 280. The question then becomes: what constitutes contributory negligence? This has been a common problem in FELA cases. Most courts have stated that assumed risk arises out of the employment contract, while contributory negligence arises out of conduct. In Taylor v. Burlington Northern R. Co. (9th Cir.1986), 787 F.2d 1309, 1316, 1317, the court stated:

Although there is some overlap between assumption of risk and contributory negligence, generally the two defenses are not interchangeable. (Cite omitted.) At common law an employee's voluntary, knowledgeable acceptance of a dangerous condition that is necessary for him to perform his duties constitutes an assumption of risk. (Cite omitted.) Contributory negligence, in contrast, is a careless act or omission on the plaintiff's part tending to add new dangers to conditions that the employer negligently created or permitted to exist.

* * * * * *

The employee who enters the workplace for a routine assignment in compliance with the orders and directions of his employer or its supervising agents, who by such entry incurs risks not extraordinary in scope, is not contributorily negligent, but rather is engaging in an assumption of risk.

* * * * * *

Reporting to work or facing the risks inherent in one's job is the essence of assumption of risk.

Following that reasoning, Kalanick asserts that his decision to follow orders and load and unload ties rather than refuse to do the work constitutes assumption of risk. Testimony of the Roadmaster, Ed Sherman, Kalanick's supervisor, reveals that Kalanick did the work expected of him, and as he was expected to do it. In addition, the testimony of three B.N. foremen was of the consensus that the assignment of heavy labor to two men with only a high-rail pickup was "unreasonable" and "unsafe," with the ultimate result that "somebody will wear out [and] get hurt."

Testimony of the B.N. employees refutes B.N.'s contentions of an absence of negligence on its part. The FELA imposes a high standard of care upon the carrier. Kernan v. American Dredging Co. (1958), 355 U.S. 426, 439, 78 S.Ct. 394, 401, 2 L.Ed.2d 382. There are duties imputed to the carrier under the Act, including: The duty to provide a safe workplace, Tiller v. Atlantic Coast Line R.R. (1943), 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610; the duty to furnish employees with suitable equipment to enable the employee to perform work safely, St. Louis Southwestern Ry. Co. v. Greene (Tex.1977), 552 S.W.2d 880, 884; the duty to provide sufficient manpower to complete work in a reasonably safe manner, Blair v. Baltimore & O.R. Co. (1945), 323 U.S. 600, 65 S.Ct. 545, 89 L.Ed. 490; and the duty to assign workers to jobs for which they are qualified and to avoid placing them in jobs beyond their physical capabilities, Fletcher v. Union Pac. R.R. (8th Cir.1980), 621 F.2d 902, 909, cert. denied 449 U.S. 1110, 101 S.Ct. 918, 66 L.Ed.2d 839. See generally Ackley v. Chicago and North Western Transp. Co. (8th Cir.1987), 820 F.2d 263.

The record is clear that B.N. did not assign to Kalanick any lifting devices. Kalanick and his partner were expected to do substantial lifting without mechanical aid. Roadmaster Sherman testified that it was his responsibility to make sure that there was sufficient manpower and equipment assigned so that men would not get injured. The case law under the FELA amplifies that point. Sherman knew he had a duty to protect his men. The District Court weighed that fact against assertions by B.N. that Kalanick should have availed himself of additional manpower or equipment, used "safer" lifting techniques or better discretion as to which items he lifted. B.N. contended that Kalanick, by his own failings, was contributorily negligent. The District Court, in light of 45 U.S.C. Sec. 54 and the multitude of cases interpreting it, correctly dismissed B.N.'s contributory negligence defense. The court in its ruling stated:

It seems to me that your factual arguments go to assumption of the risk.... There was testimony, very clear testimony from the representatives of Burlington Northern that as far as they were concerned, Mr. Kalanick didn't stray from the ordinary course of his duties. That he was performing his duties in a reasonable manner.

Specifically, the question [of whether Kalanick created any new dangers for himself] was asked and answered.

Where is the evidence? I just don't see it. I was listening very carefully for that very evidence that would give you that defense [of contributing negligence], and I did not find it in this case.

The District Court, having viewed all the evidence, determined that B.N. was attempting to interject assumption of risk, and therefor properly disallowed the defense. To impute negligence to Kalanick through instruction to the jury when no contributory negligence was shown would have been error. Because no contributory negligence was shown, the court correctly instructed the jury that Kalanick was not negligent "as a matter of law." (Emphasis supplied.)

B.N. next contends that the trial court erred by allowing evidence of a similar injury to be admitted. B.N. Section Foreman Joe Stiffarm testified, and Roadmaster Ed Sherman verified, that another man previously under Sherman's direction had injured his back by lifting ties and had sued, alleging...