Morris v. Union Pacific R.R.

• Decision Date: 28 June 2004
• Docket Number: No. 03-1622.,03-1622.
• Citation: 373 F.3d 896
• Parties: John Munson MORRIS; Margaret Morris, Appellees, v. UNION PACIFIC RAILROAD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

373 F.3d 896

John Munson MORRIS; Margaret Morris, Appellees, v. UNION PACIFIC RAILROAD, Appellant.

No. 03-1622.

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2004.

Filed: June 28, 2004.

Rehearing and Rehearing En Banc Denied August 4, 2004.

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John Dewey Watson, argued, Little Rock, AR (William H. Sutton, Robert S. Shafer, and Ellen M. Owens, on the brief), for appellant.

Phillip J. Duncan, argued, Little Rock, AR (C. Michael Bee, Charleston, WV and Robert L. Pottroff, Manhattan, KS, on the brief), for appellees.

Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

In this diversity action against Union Pacific Railroad for personal injuries, a jury returned a verdict for the plaintiff, John Morris. Union Pacific appeals. We reverse and remand for a new trial.

I.

John Morris owned and operated a wrecking company in Waldo, Arkansas. On November 8, 1999, a west-bound Union Pacific train collided with a tractor-trailer truck at the Olive Street railroad crossing in Waldo. The impact separated the truck's two trailers, leaving the front trailer on the north side of the track, and the rear trailer on the south side. No one was hurt in the collision. The train eventually came to a stop, but when it did, it blocked Olive Street and two other crossings, thereby impeding both train and auto traffic in the area.

Morris was contacted by a local sheriff's dispatcher to remove the damaged trailers from the crossing. He arrived at the south side of the Olive Street crossing, and began to survey the wreckage for removal. The damaged rear trailer was close to the train. It was separated from the train by only a few inches at one corner, while another corner was several feet from train. Morris moved into the resulting triangular space between the trailer and the train to see whether the wreckage was entangled with the train. While making his inspection, the train moved forward. There is evidence in the record that the train moved without warning, and that a protrusion pulled and pinched Morris through the narrow opening between the westernmost edge of the trailer and the train. Morris suffered severe facial trauma, brain injury, and psychological harm.

Morris and his wife filed this action alleging that Union Pacific was at fault for Morris's injuries. After a trial, a jury found in favor of Morris, and awarded him $8 million in compensatory damages, but no punitive damages.

Union Pacific advances four contentions on appeal. First, Union Pacific claims that it was entitled to judgment as a matter of law on Morris's negligence claim. Second, Union Pacific claims that the district court erred by giving an adverse inference instruction as a sanction for Union Pacific's routine destruction of an audiotape containing communications between the train's crew and the dispatcher. Third, Union Pacific argues the district court's instruction to the jury on premises liability was misleading and prejudicial. Last, Union Pacific argues that it was error to submit the issue of punitive damages, and evidence of Union Pacific's net worth, to the jury, and that the district court should have granted the railroad's motion for judgment as a matter of law on the punitive damages claim.

II.

Union Pacific claims that under Arkansas law, which governs this diversity case, Morris's contributory negligence entitles the railroad to judgment as matter of law. We disagree.

Union Pacific argues that Morris himself was negligent to a greater degree than the railroad because he "suddenly and without warning plac[ed] himself in a position of extreme danger, which UP could not anticipate or prevent." The railroad cites several crossing injury cases, from the early 20th century, holding that a railroad was not liable because a injured party's negligence exceeded that of the railroad, or the railroad could not have prevented the injury. See Thrower v. Henwood, 351 Mo. 663, 173 S.W.2d 861, 867-68 (1943) (Arkansas law) (lookout could not have avoided the accident where claimant had attempted to climb between cars at crossing); St. Louis-San Francisco Ry. Co. v. Sheppard, 194 Ark. 619, 109 S.W.2d 109, 110-11 (1937) (no evidence that lookout could have seen trespasser who crawled under car); Cato v. St. Louis-Southwestern Ry. Co., 190 Ark. 231, 79 S.W.2d 62, 62-63 (1935) (contributory negligence of victim who attempted to pass under or between the cars); St. Louis-San Francisco Ry. Co. v. McClinton, 178 Ark. 73, 9 S.W.2d 1060, 1062 (1928) (victim "must necessarily have known there was peril in climbing between cars which might be moved"); Kelly v. De Queen & E. R.R. Co., 174 Ark. 1000, 298 S.W. 347, 349 (1927) ("whether the injury to deceased could have been avoided, if an efficient lookout had been kept, is entirely conjectural"); Curtis v. St. Louis & San Francisco R.R. Co., 96 Ark. 394, 131 S.W. 947, 948-49 (1910) (injured party grossly negligent in attempting to cross between cars when train was ready to move).

Union Pacific characterizes Morris's movements as a "sudden impulse," and claims that Morris was to blame for the accident because he placed his head in a position of extreme peril between or around the corner of the trailer and the train. There is evidence in the record, however, to support the conclusion that Morris did not suddenly place his head in a position of extreme danger, that a lookout or sounding of a whistle could have prevented the injury, that Morris was hurt when a protrusion on the side of the train caught him and forced him through the narrow gap between the trailer and the train, or that other negligence by Union Pacific caused the accident. This evidence distinguishes Morris's situation from those found in the authorities cited by Union Pacific. On the record before us, it was within the province of the jury, which was instructed to rule in favor of Union Pacific if Morris's negligence was "equal or greater" than that of the railroad, to resolve the issue of Morris's alleged contributory negligence. See St. Louis-San Francisco Ry. Co. v. Horn, 168 Ark. 191, 269 S.W. 576, 578 (1925) (contributory negligence in crossing accident not equal in degree to railroad's as a matter of law: "it was a question to be left to the jury.").

III.

Union Pacific next argues that the district court erred in giving an adverse inference instruction regarding the destruction of an audiotape recorded by the railroad on the date of the accident. Union Pacific routinely tapes communications between its train crews and the railroad's dispatcher, and then recycles the tapes after 90 days. At the time Morris filed suit, the recording — which would have contained communications between the train crew and the railroad dispatcher before and after Morris's injury — had long since been destroyed. Before trial, Morris filed a motion for sanctions on the ground that Union Pacific should not have destroyed the recording.

The district court granted Morris's motion and concluded that an adverse inference instruction was proper. In so ruling, the district court found that the document retention policy was reasonable on its face, and that Union Pacific "did not intentionally destroy the tape." Nevertheless, relying on dicta from this court's decision in Lewy v. Remington Arms Co., 836 F.2d 1104, 1112 (8th Cir.1988), the district court concluded that where evidence is destroyed pursuant to a valid document retention policy, "a finding of no intent is no longer dispositive of the issue." The court then concluded that destruction of the audiotape constituted "bad faith" because Union Pacific was "on notice" that litigation was likely to ensue after the Morris accident. In finding bad faith, the district court relied on "the frequency of accidents that result in litigation," the "magnitude of injuries that can occur" from railroad accidents, and "the quality of the evidence that is [] preserved in an audio tape of the actual communications of railroad employees in the midst of an accident."

In accord with its pretrial ruling, the district court gave the following instruction to the jury during the course of the trial:

[Y]ou've heard evidence that there was an audio tape recording of communications made by railroad employees over their radios, including the communications between the railroad dispatcher and the employees on the train in Waldo. The tape was erased about 90 days after the accident because Union Pacific has a policy to reuse it's [sic] audio voice tapes and it is usual procedure to record over the tapes after 90 days. However, this court found in another hearing or a previous hearing that Union Pacific should not have re-recorded this tape pursuant to its policy but should have saved the tape because it was on notice that a serious injury had occurred and it knew there was a possibility that a lawsuit would follow the injury. Because Union Pacific destroyed the information on the tape when it should have kept the information, you may, you may, infer that there was information in the recorded communications that would have proved damaging to Union Pacific or helpful to John Morris.

Relying on this adverse inference instruction, counsel for Morris argued extensively to the jury that it should infer evidence damaging to Union Pacific from the missing audiotape. Among the inferences suggested were that dispatchers at Union Pacific headquarters in Omaha directed the crew to move the train notwithstanding the crew's protest that it could not be done safely, that train movement was rushed because dispatchers were concerned about train traffic, and that the train crew made admissions during spontaneous chatter between the crew and dispatchers following the accident. There was no direct evidence of these facts introduced at trial, and members of the train crew disputed them. Counsel also emphasized to the jury that Union Pacific was "destroying evidence," which...