Lozano v. BNSF Ry. Co., SC 92996.

CourtUnited States State Supreme Court of Missouri
Citation421 S.W.3d 448
Docket NumberNo. SC 92996.,SC 92996.
PartiesRafael LOZANO, Appellant, v. BNSF RAILWAY COMPANY, Respondent.
Decision Date25 March 2014

421 S.W.3d 448

Rafael LOZANO, Appellant,

No. SC 92996.

Supreme Court of Missouri,
En Banc.

Feb. 4, 2014.
Rehearing Denied March 25, 2014.

[421 S.W.3d 450]

Newton G. McCoy, Robert J. Friedman and C. Marshall Friedman, C. Marshall Friedman PC, St. Louis, for Lozano.

Craig M. Leff, James M. Yeretsky, Gregory F. Maher and Spencer L. Throssel, Yeretsky & Maher LLC, Kansas, for BNSF.


Rafael Lozano appeals from a judgment in favor of BNSF Railway Company (“BNSF”) on Lozano's negligence claims under the Federal Employers' Liability Act (“FELA”). This Court granted transfer pursuant to Rule 83.04 and has jurisdiction of the appeal. Mo. Const. art. V, § 10. Lozano asserts three claims of error relating to the trial court's exclusion of evidence at trial. Finding no abuse of discretion in the trial court's evidentiary rulings, the Court affirms the judgment in all respects.

I. Facts

Lozano worked for BNSF for 33 years, including 29 years as an electrician. At the time of his injury, Lozano worked at a BNSF service facility located next to the rail yard in Argentine, Kansas. His job was to inspect locomotives in the service facility to see that they were ready to return to service. To ensure that a locomotive was “lead qualified,” i.e., ready to take the lead position in a train and be staffed by a train crew, Lozano was required to inspect for and remedy the potential hazards or defects identified on the “lead qualified” checklist.

According to this checklist, Lozano was to identify and remove any loose articles in the cab of the locomotive that could interfere with the engineer's duties or cause an injury in the event of a collision. Among the items Lozano frequently had to move were end-of-train devices (“ETDs”) 1 left behind in locomotive cabs. When a BNSF train is dismantled in the Argentine yard, the ETD is supposed to be removed from the rear car and placed on a rack outside the service facility until it is needed on a newly assembled train. Occasionally, however, members of the crew dismantling a train will disconnect an ETD and place it in the cab of the locomotive instead of on the rack. It was undisputed that ETDs do not belong in locomotive cabs and that locomotives cannot be lead qualified unless and until ETDs are removed from the cabs. Lozano testified that he removed ETDs from locomotive cabs approximately twice each week, or nearly 2,900 times during his career. Lozano admitted that he never injured himself moving an ETD

[421 S.W.3d 451]

from a locomotive cab before, and there was no evidence presented that any employee ever had been injured doing so.

Lozano testified that in May 2007 (he could not recall the exact date), he was assigned to lead qualify a locomotive and discovered two ETDs wedged behind a refrigerator in the locomotive cab. Neither Lozano nor any of the other employee witnesses ever had discovered ETDs in that position before. To remove them, Lozano was required to bend awkwardly over the refrigerator and lift them using only his arms and back. Lozano testified that, when he did so, he felt a sharp pain in his groin as he began to lift the ETDs. The pain subsided after only a few minutes, and Lozano was able to finish his shift. Lozano admits that he did not report this injury or seek medical care for it at that time. Some time later, Lozano was attempting to disconnect a snow plow on a locomotive and felt the same pain in his groin, only worse. Lozano later saw a doctor for the pain and, on June 25, 2007, had outpatient surgery to repair an inguinal hernia. Lozano sued BNSF for damages relating to this injury.

II. Standard of Review

A trial court “enjoys considerable discretion in the admission or exclusion of evidence, and, absent clear abuse of discretion, its action will not be grounds for reversal.” Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc 2011) (quotation marks excluded). 2 It abuses this discretion when its “ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.” In re Care & Treatment of Donaldson, 214 S.W.3d 331, 334 (Mo. banc 2007). “If reasonable persons can differ as to the propriety of the trial court's action, then it cannot be said that the trial court abused its discretion.” St. Louis Cnty. v. River Bend Estates Homeowners' Ass'n, 408 S.W.3d 116, 123 (Mo. banc 2013) (quoting Donaldson, 214 S.W.3d at 334). Moreover, “it is well settled that if the action of the trial court was proper on any ground, although not asserted, such action will be upheld.” Franklin v. Friedrich, 470 S.W.2d 474, 476 (Mo.1971). As a result, “it is immaterial on what ground the objection or ruling was made or whether such ground is good; and the sufficiency of the reason need not be considered.” Id. (quoting 5 C.J.S. Appeal & Error § 1464(3)).

Even if the trial court has abused its discretion in excluding evidence, this Court is loathe to vacate a jury's verdict and resulting judgment on such grounds. Lewis v. Wahl, 842 S.W.2d 82, 84–85 (Mo. banc 1992) (“question of error does not resolve the question of whether reversal is mandated”). Instead, “[b]y

[421 S.W.3d 452]

both statute and rule, an appellate court is not to reverse a judgment unless it believes the error committed by the trial court against the appellant materially affected the merits of the action.” Id. See also Sorrell v. Norfolk S. Ry. Co., 249 S.W.3d 207, 209 (Mo. banc 2008) (affirming FELA judgment in which instructional error was harmless). An erroneous evidentiary ruling warrants reversal, therefore, only when it “affects the result or the outcome of the case,” Moore, 332 S.W.3d at 768 n. 12, and “exclusion of evidence which has little, if any, probative value is usually held not to materially affect the merits of the case and hence, error in rejecting such evidence is not grounds for reversal,” Lewis, 842 S.W.2d at 85.

III. Analysis

Lozano's petition alleges that he “was required to lift, manhandle, and carry very heavy” ETDs and that he was injured when he was “forced to carry the devices alone and without mechanical assistance[.]” Lozano alleges that BNSF was negligent in failing to provide him with: (1) reasonably safe tools and equipment for his tasks, including for lifting; (2) adequate help in performing his tasks; (3) reasonably safe methods of or conditions for performing his tasks; and (4) adequate supervision as he performed his tasks. At trial, Lozano argued these same claims to the jury. The jury rejected Lozano's claims, however, and returned a verdict for BNSF. On appeal, Lozano argues that the trial court erred in excluding certain evidence and that had this evidence been admitted, the outcome of his trial would have been different.3

A. Lozano's Excluded Evidence

At trial, Lozano sought to introduce evidence to show: (1) that ETDs should not be stored in a locomotive's cab because they could be stored more safely in the locomotive's compressor compartment; and (2) that ETDs in a locomotive cab pose a tripping (or other) hazard to train crews. When the trial court sustained BNSF's objections to this evidence, Lozano made an offer of proof detailing the testimony that he and three other witnesses would give to establish these facts. In addition to their factual testimony, Lozano insisted that under section 490.065, RSMo 2000, he and two other employee witnesses should have been allowed to offer expert opinions on these issues.

1. Unused ETDs Need Not be Stored in Locomotive Cabs

Lozano claims that the trial court erred by excluding evidence that ETDs should not be stored in locomotive cabs because they can be stored more safely in the locomotive's compressor compartment.4 To support this claim, Lozano cites

[421 S.W.3d 453]

cases holding that, under FELA, evidence of alternative methods for performing the task in which the employee was injured may be admitted to show that the railroad was negligent in requiring the employee to perform that task using the method that caused the injury. See, e.g., Schroeck v. Terminal R.R. Ass'n of St. Louis, 305 S.W.2d 18, 21 (Mo.1957) (“that there are alternative methods of performing a task is certainly a relevant circumstance to be considered in determining what a reasonable and prudent employer should have done in the circumstances”); Stone v. New York, C. & St. L.R. Co., 344 U.S. 407, 409, 73 S.Ct. 358, 97 L.Ed. 441 (1953) (same).

In addition to authority allowing evidence of alternative work methods, Lozano also relies on cases holding that evidence of alternative work conditions may be admitted in a FELA action to show that the railroad was negligent in requiring the employee to work in the conditions that caused the injury. Elliott v. St. Louis Southwestern Ry. Co., 487 S.W.2d 7, 13, 15–16 (Mo.1972). Finally, Lozano notes that FELA does not require the employee to prove that the railroad knew about the safer work methods or conditions before evidence of such alternatives may be admitted to prove that the railroad was negligent in insisting upon the methods actually required or the conditions actually endured. See, e.g., Cleghorn v. Terminal Railroad Association of St. Louis, 289 S.W.2d 13, 18 (Mo.1956) (railroad could be negligent for failure to provide reasonably safe work conditions by failing to light switchstand, even without evidence that such lighting was practicable or commonly used).

Lozano's abstract statements of law are correct as far as they go, but they have no application to his case. Lozano's excluded evidence does not purport to demonstrate alternative methods of moving these ETDs from the locomotive cab that would have allowed him to perform this task without injury or alternative conditions in which Lozano could have performed this task and not been hurt. Instead, Lozano's excluded evidence shows only that ETDs should not be stored in...

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