Mickelson v. Montana Rail Link, Inc.

• Decision Date: 28 April 2000
• Docket Number: No. 98-014.,98-014.
• Parties: James A. MICKELSON, Individually, and Vickie Mickelson, Individually, and on Behalf of Her Minor Children, Andrew James Mickelson, Scott Allen Mickelson, and Tyler James Mickelson, Plaintiffs and Appellants, v. MONTANA RAIL LINK, INC., Defendant and Respondent.
• Court: Montana Supreme Court

999 P.2d 985

2000 MT 111

James A. MICKELSON, Individually, and Vickie Mickelson, Individually, and on Behalf of Her Minor Children, Andrew James Mickelson, Scott Allen Mickelson, and Tyler James Mickelson, Plaintiffs and Appellants, v. MONTANA RAIL LINK, INC., Defendant and Respondent.

No. 98-014.

Supreme Court of Montana.

Heard January 28, 1999.

Submitted February 1, 1999.

Decided April 28, 2000.

John C. Hoyt (argued), Kurt M. Jackson (argued), Hoyt & Blewett, Great Falls, Montana, for Appellant.

Ronald B. MacDonald (argued), Darla J. Keck (argued), Datsopoulos, MacDonald & Lind, Missoula, Montana, for Respondent.

Peter F. Habein, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana (Montana Defense Trial Lawyers); Patricia O'Brien Cotter, Cotter & Cotter, Great Falls, Montana (Montana Trial Lawyers Association), for Amici.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Jim and Vickie Mickelson along with their minor children (collectively referred to as "the Mickelsons") brought this action against Montana Rail Link, Inc. (MRL) to recover personal injury damages for the injuries Jim Mickelson (Jim) suffered in a railroad grade crossing accident and for loss of consortium damages suffered by Vickie Mickelson (Vickie) and their three minor children. The case went to trial in the District Court for the Fourth Judicial District, Missoula County, and the jury found in favor of MRL. The Mickelsons appeal. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

¶ 2 The issues on appeal are:

¶ 3 1. Did the District Court err in allowing MRL to present evidence that Jim received workers' compensation benefits?

¶ 4 2. Did the District Court err in instructing the jury as to the speed of trains?

¶ 5 3. Did the District Court err in granting partial summary judgment regarding whether the train crew gave an adequate auditory warning?

¶ 6 4. Did the District Court err in precluding the Mickelsons' presentation of claims for relief which were not pled in their complaint or in their pretrial order?

¶ 7 5. Did the District Court err in precluding the presentation of the Mickelsons' claim that MRL had a duty to operate a train that was "plainly visible?"

¶ 8 6. Did the District Court err in excluding the testimony of the Mickelsons' medical expert witnesses?

¶ 9 7. Did the District Court err in allowing rebuttal witnesses to testify to issues raised for the first time at trial and in excluding a rebuttal exhibit?

¶ 10 8. Did the District Court err in allowing certain expert opinion testimony as to a train crew's obligations as they approach a crossing?

¶ 11 9. Did the District Court err in concluding that the loss of consortium claims of Vickie and the three minor children should be reduced by the percentage of negligence attributable to Jim?

¶ 12 Because we reverse and remand for a new trial, we do not address issues 4, 6 and 7.

Factual and Procedural Background

¶ 13 Jim was severely injured when the vehicle he was operating collided with an MRL freight train at a railroad crossing near the Momont industrial area north of Missoula. The accident occurred on July 10, 1991, at approximately 4 a.m.

¶ 14 Earlier that same morning, a fire had broken out at the Gallagher Cedar Products Mill west of Missoula. The Missoula Rural Fire Department (MRFD) responded. Jim had been a paid firefighter for MRFD since March 4, 1982. Prior to that time, he had worked as a volunteer for MRFD for several years.

¶ 15 At first, Jim videotaped the fire for fire investigation purposes, but because MRFD was short handed, Jim was re-assigned to fire suppression duties. There were no water hydrants near the fire, consequently, fire trucks known as "water tenders" had to be used to transport water from a remote water hydrant to the fire site. The Gallagher fire was so large that MRFD had to use four or five water tenders. Because Jim was an experienced water tender driver, he was assigned to Water Tender 20 (WT 20), one of MRFD's largest water tenders.

¶ 16 WT 20 held approximately 4,000 gallons of water and weighed close to 60,000 pounds when loaded. WT 20, like all of MRFD's emergency vehicles, was equipped with red overhead flashing emergency lights and a siren. The red flashing lights were highly visible at night and, when flashing, meant that WT 20 was responding to an emergency.

¶ 17 A quick-fill site was established for the water tenders at a high pressure water hydrant located north of the MRL railroad tracks in the Momont industrial area approximately a miles east of the fire. The entrance to this area is located directly across from the entrance to the Missoula airport. This location was selected because of the high flow of water coming out of that hydrant.

¶ 18 Jim and the other MRFD firefighters were familiar with the Momont hydrant and specific procedures had been developed over the years for loading water tenders at that hydrant. Jim, along with several other firefighters, testified at trial that they had been trained to fill the water tenders by crossing the railroad tracks and proceeding north on Momont Road, past the hydrant, while the water tenders were empty. They would then turn around at the paved Federal Express parking lot, proceed to the hydrant to fill the water tenders, and then travel the 261 feet to the railroad crossing. The firefighters all testified that they used this procedure because the water tenders were extremely difficult to turn while loaded and the weight of the loaded water tenders would tear up the asphalt in the Federal Express parking lot. Jim has no specific memory of the accident or the events surrounding it, but he testified that he is sure that he would have positioned WT 20 as he had hundreds of times in the past by turning WT 20 around prior to filling it.

¶ 19 The MRL train that struck WT 20 was traveling from Charlo to Missoula where the crew, engineer Dale Bettisworth and assistant engineer James Puyear, planned to disembark and go home for the night. The train had two locomotives, four loaded cars, and nine empty cars. The train was not carrying any perishable items, it was not on a schedule, and there was no hurry for it to reach Missoula. The train was equipped with a narrow beam headlight. The lead locomotive was also equipped with a standard whistle and bell and a single revolving yellow or amber light, located directly behind the headlight.

¶ 20 Bettisworth testified that, as the train traveled down Evaro Hill towards Missoula, he saw the fire raging at the Gallagher Mill. He also testified that he saw red flashing emergency lights in the area of the fire and traveling on Highway 10 to the south parallel to the railroad tracks.

¶ 21 William Brodsky, the president of MRL, testified that there were procedures in place to stop train traffic in emergency situations when notified by 9-1-1 or law enforcement personnel. MRFD, however, did not request that 9-1-1 inform MRL dispatch of the fire or the use of the hydrant across the tracks from the fire. Moreover, Paul Laisey, operations chief of MRFD, testified that, contrary to Brodsky's assertions of cooperation, in a situation sometime prior to the Gallagher fire when MRFD notified MRL that it would be necessary for MRFD to place fire hoses across MRL's tracks to get at a fire, MRL threatened to run over the hoses if they were not immediately removed.

¶ 22 The Momont crossing is regulated by crossbucks and a stop sign located approximately 17 feet and 26 feet respectively from the crossing. MRL has owned the railroad tracks at this crossing since 1987, thus it is MRL's responsibility to maintain the tracks. Testimony showed that MRL had not done any work on the tracks since July 1988. While some individuals testified at trial that the crossing was extremely rough and that heavy vehicles like WT 20 were required to proceed very slowly over the crossing so as not to incur damage, others testified that this was not the case.

¶ 23 Bettisworth testified that as the train traveled east towards the Momont crossing, he could see the red flashing emergency lights on WT 20 from over a mile away and that he recognized that it was probably an emergency vehicle. He testified that when he first saw the red flashing lights they were approximately 1140 feet north of the crossing and that they were slowly moving south on Momont Road towards the crossing.

¶ 24 Nevertheless, the train continued to approach the crossing at a speed of 35 miles per hour, while WT 20 slowly approached the crossing on a collision course. Bettisworth testified that he sounded the train's bell and whistle from a quarter mile west of the crossing and that he assumed the vehicle would yield to the train. Thus, he did not attempt to slow or to stop the train until he realized the vehicle was not going to yield, but by then, it was too late to avoid the accident.

¶ 25 Jim suffered a severe traumatic brain injury as a result of the accident. His treating physician, Dr. Dean Ross, testified that Jim has numerous, severe and permanent limitations and disabilities as a result of his injuries. He has significant problems with memory, balance and coordination. And, he has severe problems with higher cognitive functioning in the area of abstract reasoning. Dr. Ross testified that, as a result of his disabilities, Jim will never be capable of driving a car or being competitively employed.

¶ 26 The Mickelsons brought this action on August 17, 1992, to recover personal injury damages for the injuries suffered by Jim and for loss of consortium damages suffered by Vickie and their three minor children. They contended in their complaint that the accident was caused by MRL's failure to operate its train at a reasonable and safe speed under the circumstances; failure to keep a proper lookout for persons exposed to danger upon its tracks; failure to give a proper warning of the approach of the train; and...